Deaths in Custody: redress and remedies

Greta S. Vogt & John Wadham

protecting civil liberties promoting human rights

The Civil Liberties Trust

March 2003 Foreword by Vera Baird QC MP,Chair of the advisory committee for this research

It was a pleasure to be asked to chair this important experts’ committee, established by Liberty. From the start it was clear not only that all the participants were indeed very expert, but also that each in different ways and from different perspectives cared immensely about trying to get this difficult topic right.The discussions were of the highest calibre and ranged over a wide field of experience.

The result is a very sound and thought-provoking report which analyses contentious deaths in custody and their often flawed investigation. Its criticism of the State’s present treatment of bereaved families is no more than common sense but it carries behind it intimate acquaintance with the real effects of that treatment on individuals.

The report gives an overview of the historical issues which have given rise to the problems we see with the investigation of, most notably, deaths in police custody. But there is proper coverage too of the other circumstances during which a person’s wellbeing is the responsibility of the state - deaths in prisons and in mental health institutions.

An excellent summary and analysis is provided of the recent decisions in the European Courts which have driven the development of the law in relation to contentious deaths.The recent impact of the European Convention on Human Rights under Article 2, by establishing the principle of the State’s positive obligation to prevent a real and immediate risk to life, continually informs the analysis throughout the report.

The authors consider the functioning of the investigation of contentious deaths and they deal separately with the current procedure for police, coroners and pathologists.The authors also offer suggestions for reform – including in their analysis the expected impact of the Independent Police Complaints Commission, which ensures this report will remain relevant for the duration of that transition and beyond.

A detailed consideration of the long recognised, and long overdue, need for an overhaul of the inquest system and coroner’s law follows.The government-appointed coroners law review team, expected to report imminently, are anticipated to make suggestions for radical reform of the inquest system. I hope that the thoughtful recommendations of the authors will contribute towards any subsequent debate, and, hopefully, this momentum will be a precursor to reform in this area of the law.

In the section entitled ‘Other Remedies’, the authors consider, most notably, the work of the Crown Prosecution Service and recourse to civil litigation.Again, they bring a carefully considered perspective to reform which is already underway.

The authors’ recommendations will, I have no doubt, prove invaluable reading for anyone with an interest in this area of the law and public policy.

Vera Baird QC Member of Parliament for Redcar January 2003 Acknowledgements

This research has benefited throughout from the supervision of an Advisory Committee.The members of the Committee have agreed terms of reference for the research, attended regular meetings, suggested lines of research, advised on the viability of proposals, and substantially contributed to this final report.We are deeply grateful for their help and guidance at every stage.

Nevertheless, the views contained in the report are those of Liberty, and do not in every respect reflect the opinions of all the individual members of the Committee.

Advisory Committee

Chair: Vera Baird QC MP,House of Commons

Alan Bacarese Policy, Crown Prosecution Service David Best Researcher, Police Complaints Authority Raju Bhatt Bhatt Murphy Solicitors Lee Bridges Professor, Director Legal Research Institute,Warwick University Ian Bynoe Deputy Chair, Police Complaints Authority Nat Cary formerly Director of Forensic Medicine, Guys & St Thomas’Hospitals NHS Trust Deborah Coles Co-Director, INQUEST Rod Dalley Police Federation Stephen O’Doherty Casework Directorate, Crown Prosecution Service George Hedges QPM Association of Chief Police Officers representative; former Chief Constable of Durham Sadiq Khan Christian Khan Solicitors Phil Scraton Professor, Director, Centre for Studies in Crime & Social Justice, Edge Hill College Selena Lynch Coroner, Southwark Coroner’s Court Paul Mageean Committee on the Administration of Justice, Belfast Molly Meacher formerly Deputy Chair, Police Complaints Authority Tim Newburn formerly Professor of Social Policy and Politics, Goldsmiths College, London Tim Owen Barrister, Grays Inn Paul Pugh Police Powers and Leadership Unit, Home Office Ismet Rawat formerly Policy, Crown Prosecution Service John Woodcock Head of Powers and Procedures, Police Powers and Leadership Unit Home Office

The following attended as observers:

Michael Gallagher Review of Coroners’ Services, Home Office Sophie Osborn Review of Coroners’ Services, Home Office Barbara Stow Prison and Probation Ombudsman’s Office Kathleen Lowe Policy, Law Society London Jenny Hall Safer Custody Group

We are particularly grateful to INQUEST, and to co-director Deborah Coles. INQUEST helped us to think about the structure of this research before we started. Despite being very busy in trying to assist the relatives of all those that died, they also gave us substantial access to their files and their time.

We are also deeply grateful to Danny Friedman, Matrix Chambers, and Daniel Machover, Hickman and Rose, for their special efforts and valuable contribution to sections of this report.

We have been assisted in the course of our research by a great number of people in England, Scotland, Ireland,Australia and Canada, at a variety of levels. Some are listed in the Appendix; we extend our thanks to them all. Table of Contents

Executive Summary 1

1: Introduction 5 1. Introduction5 2. Background 7 3. Obligations under European Law 8 4. Focus of this report 9 5. Methodology 9 5. Structure 10

2: Deaths in Custody and the European Convention 11 1. Context 11 2. Core Principles 11 2.1 Application of Article 2 11 3.The State’s positive obligation to prevent a real and immediate risk to life 12 4.A free-standing right to an effective investigation 13 5.Verdicts 16 6. Conclusion 17

3: Investigation 19 1. Introduction19 2.The current procedure – the police 19 2.1 The rules after a death has occurred 19 2.2 Practice 20 2.3 Disclosure of documents 22 2.4 Reform 22 2.4.1 An Independent Police Complaints Commission 22 2.4.2 Composition of the IPCC 23 2.4.3 Powers of the IPCC 24 2.4.4 Conclusion 26 2.5 Investigations in prisons and mental health institutions 26 2.6 Conclusions 27 3.The current procedure – the coroners 27 3.1 The rules after a death is reported 27 3.2 Practice 28 3.3 Conclusions 30 4.The pathologist 30 4.1 The rules after a death has occurred 30 4.2 Practice 30 4.3 Conclusions 32 5. Conclusion 32

4: Public Scrutiny/ the Inquest System 33 1. Introduction33 2.The inquest system 33 3. International ‘soft-law’ standards 34 4. Issues arising in practice 35 4.1 Introduction 35 4.2 The remit (and the verdict) 35 4.2.1 Rule 42 of the Coroners Rules 35 4.2.2 Rule 43 of the Coroners Rules 37 4.3 The structure of the courts – the jury 38 4.4 Disclosure (transparency) 39 4.5 Delays (effectiveness/efficiency) 44 4.5.1 The inquest proceedings 44 4.5.2 The subsequent prosecution 45 4.6 Funding for legal work at inquest proceedings 46 4.7 Judicial review - scrutiny by the courts 46 5. Conclusion 48

5: Other remedies 49 1. Introduction49 2. Criminal prosecution 49 2.1 Introduction 49 2.2 The decision-making process of the Crown Prosecution Service 49 2.2.1 Discrimination 52 2.2.2 Reasons for deciding not to prosecute 52 2.2.3 An independent prosecutor? 53 2.2.3 Reasons not to prosecute 54 2.3 Attorney General Review 54 2.4 Judicial Review 55 2.5 Conclusion 56 3.The disciplinary hearing 56 3.1 Introduction 56 3.2 The disciplinary process 57 3.3 Sanctions following police disciplinary procedures and their adequacy 57 3.4 Conclusion 58 4. Civil action 58 4.1 Introduction 58 4.2 Actions after death 58 4.3 Conclusion 59 5. Remedy at European level 59 6. Public inquiries 60 6.1 Introduction 60 6.2 Public inquiries 61 6.3 Conclusion 62 7. Conclusion 62

6: Recommendations for Change 63 1. Introduction63 2. Shortcomings in the investigations 63 2.1 Introduction 63 2.2 The investigation 63 2.3 Recommendations for change 64 3. Shortcomings in the inquest system 67 3.1 Introduction 67 3.2 The inquest system 67 3.3 Recommendations for change 67 4. Shortcomings with regard to other remedies 69 4.1 Introduction 69 4.2 The other remedies 69 4.3 Recommendations for change 70 4.4 Other recommendations 72 5. Overall conclusion and recommendations 73

Appendices 1. Unlawful killing verdicts and/or prosecutions following deaths in custody since 1990 2. Research trip to Toronto – summary and findings 3. Research trip to Australia – summary and findings 4. Terms of reference of the Advisory Committee 5. Definitions of deaths in custody 6. Index of common abbreviations Executive Summary

Introduction frustrate disclosure, restrict the remit of the investigation and denigrate the deceased. As a result, relatives and their There are severe shortcomings in the current systems for supporters have little confidence in the system. investigating and providing remedies after deaths in custody.Article 2 of the European Convention on Human The new Independent Police Complaints Commission Rights enshrines the right to life. The positive duty it (IPCC) will in future investigate all ‘controversial’ deaths in places on the state to secure life is particularly important police custody itself. Before it starts work in April 2004, for those in custody, who have a substantially reduced however, the IPCC needs to find and train enough capacity to take care of themselves and are often experienced staff to make sure that it does not rely particularly vulnerable as a result of physical or mental exclusively on seconded police officers in its investigations. illness.The consequence is that the state must be presumed But the IPCC will only investigate deaths involving police to have failed if a person dies in its custody. Therefore there officers, (or ‘non-officer’ members of the police). Deaths in needs to be a thorough investigation of any death, because prisons and secure hospitals will still be investigated by the any fault in the system for protecting the right to life could police and by inadequate internal mechanisms. Similar very well lead to other loss of life. independent investigation is needed here too.

The state has failed in its role not only if it does not Deaths in all forms of custody should be investigated investigate the death properly but also where criminal independently. A separate and parallel complaints offences have been committed, if it does not prosecute mechanism to the IPCC should be developed for the those responsible. independent investigation of deaths in prisons and hospitals (where people have been compulsorily detained). This report assesses the current processes of investigation, the subsequent inquest, and the availability of In addition, a separate, over-arching commission should other remedies. It highlights shortcomings and offers be established – not as an investigative body, but with a recommendations for change. mandate to bring together findings on police, prison and secure hospital deaths. Such a ‘Standing Commission on The investigation Custodial Deaths’ could identify key issues and problems, develop common programmes and research, promote best The system as a whole does not create public practice etc. It would not usually investigate individual confidence.The investigation of deaths in police and prison cases, but should have powers to intervene in any inquest, custody is too often ineffective, secretive, slow and to hold a wider inquiry where it sees a consistent pattern of insufficiently independent.The authorities involved in such deaths, to insist on access to documents and to summon cases too often do not take responsibility for their actions witnesses. and appear defensive. The inquest system The parallel, overlapping, conflicting and confusing roles of the police, the Police Complaints Authority (PCA) and The current inquest system has several flaws.The system the coroner create problems and reduce both the does not provide families and the public with what they effectiveness of the system and the confidence that others want – to find out the truth about what happened, as a step might have in it. Coroners do not, and cannot, supervise to seeing that those responsible are held liable.There is also investigations - they do not have sufficient resources, a lack of transparency – because disclosure is not provided experience or training. In theory, the police have a as of right, it is not provided early enough and there are too supportive role to the coroner, but in practice they are not many exceptions which allow material to be kept secret. subject to the coroner’s direction. The process is in effect adversarial in these cases, but confusingly it still purports to be inquisitorial. The relatives of the deceased are too often excluded and marginalised. To them, the investigation can often appear The jury is too restricted in its ability to frame verdicts less a search for truth than an attempt to avoid blame, and cannot make recommendations. The verdicts do not

1 identify who is responsible, or provide for accountability witnesses. The inquest system should be generally and liability.The ‘judgments’ given by the inquest jury as to adversarial, providing the coroner with an adjudicative role responsibility do not lead to any form of legal liability.This (although retaining some inquisitorial powers such as the creates anomalies and a lack of consistency within the ability to call witnesses). The usual civil rules of disclosure system as a whole. and legal safeguards should apply to the inquest. District judge coroners should be selected via an open process, There is a failure to learn lessons from deaths because should be properly trained and should be subject to regular the findings and recommendations of coroners are not monitoring. A proper complaints mechanism should be published, and these recommendations are not monitored established. or followed up in any systematic way. Riders have been abolished. Lastly, the lack of sufficient funding for lawyers All controversial deaths in England and Wales should be for the relatives violates the principle of ‘equality of arms’. heard by a coroner and a jury.This option will result in fairer inquests and a more open system. However, the However, abolishing the inquest system and replacing it inquest should not double up (as it has in the distant past) with an alternative system would risk losing the experience as the committal stage in the criminal process. and expertise of coroners and others. Neither civil nor criminal legal processes offer an adequate replacement – The privilege against self-incrimination should be either a reformed version of the present inquest system or abolished so that police officers and others can be forced to a direct replacement is needed. give evidence and answer questions in the inquest. But any evidence thus given should not be admissible in any Giving coroners extra powers to act as investigators was subsequent criminal proceedings against that officer. considered. But this would make the coroner both investigator and adjudicator – a controversial and There should be a full review of existing verdicts, with potentially damaging mix of roles. a verdict indicating negligence or a failure in a general duty of care introduced to the prescribed list.The parties could Liberty believes the current inquest system should be draw up and the coroner could agree specific questions for retained but radically improved – still, where possible, using juries to answer. Juries should be allowed to use narrative the expertise that has been developed so far by coroners. verdicts - allowing expression of issues of concern in those However, substantial amendment is needed if the current cases not suited to prescribed verdicts. Where the jury system is to tackle problems such as inconsistencies in the considers that negligence or a failure in a general duty of adjudication of coroners, in the standards being applied and care contributed to a death, this could be added as a rider in the experience (or lack of it) of coroners in dealing with to the principal verdict. controversial deaths. Properly interested persons should have the right to One option is to integrate coroners into the civil justice legal representation at inquests in death in custody cases. system – replacing them with (or re-appointing them as) Means testing for public funding should be abolished, district, circuit or High Court judges.The seniority of the because of the importance of the issues involved, and judge sitting as a coroner would depend on the level of because of the crucial importance of representation. seriousness of the case involved. There would be a new right of appeal to the High Court on a point of law (rather The report rejects integration of the inquest system into than families and others having to rely on judicial review). the criminal system on the basis that the underlying aims We agree with the Review Team that the requirement for of the two systems are quite different. The verdict after an the Attorney General’s “fiat” (permission), before cases can inquest is concerned with whether the system failed as a go to the High Court seeking to quash an inquest decision, whole.The criminal system focuses on the prosecution or should be abolished. the establishment of liability of individuals, and as such is more personal. Inquests need clearer rules of procedure. The relatives of the deceased should be a formal party and have a right to Liberty is aware of the ongoing coroners’ review representation, plus the powers of a party to civil litigation undertaken by the Home Office and hopes that the ideas – to cross-examine, to address the jury, and to call in this report will be considered by the review team.

2 Other remedies Service. This option offers continuity – and the use of experience and expertise acquired so far – and consistency The inquest procedure should be part of a consistent – suspects would be treated just as for other alleged crimes. legal system, working in harmony with the civil and It could involve the creation of a special unit, perhaps criminal systems. However, unlawful killing verdicts at directly responsible to the Director of Public Prosecutions inquests have led to very few prosecutions and no and separate from the rest of the CPS; or based in the office convictions of police officers. Existing remedies available in of the Attorney General and responsible to him. civil litigation or as a result of internal disciplinary procedures are neither appropriate nor sufficient for these Whatever system is adopted, enhanced scrutiny of the very serious cases. Public inquiries are rare and so do not decision-making process needs to be introduced. There constitute a standard or regular statutory system of redress. must be a clear statutory requirement to give extensive reasons for non-prosecution in such cases. Families must Criminal prosecution is the most appropriate “other” be kept informed throughout the decision-making process remedy for deaths caused by agents of the state. It holds and during the prosecution itself. In this respect Liberty those individually responsible directly liable. Currently the welcomes the Attorney General’s review of the CPS system Crown Prosecution Service (CPS) is responsible for for prosecutions following deaths in custody. prosecuting these cases. It has been suggested that there should be the possibility for appeal if the CPS decides not to prosecute – allowing Theoretically decisions not to prosecute can be judicially an examination of the merits of the decision not to reviewed on the basis that they were made in breach of the prosecute, and not just of the legality of the decision (as law (including of course the European Convention on under judicial review). However in practice, every single Human Rights) or are so perverse that no reasonable decision not to prosecute would probably be appealed – prosecutor could have made them. Nevertheless, in practice thus shifting the decision on whether to prosecute in all this rarely results in a successful challenge: and even where controversial cases to the appeal body.There are also issues a judicial review is successful and the original decision not about who would sit on such an appeal body, and who to prosecute is quashed, it rarely results in a different would prosecute cases where the appeal body overturned a decision subsequently by the CPS. CPS decision not to proceed.

The report considers three options for improving the Several other detailed options for change are considered criminal prosecution system after deaths in custody. in the report.These include the following:

Creating a completely separate body responsible for An amendment to the Code for Crown Prosecutors these prosecutions could increase public confidence in the could either create a presumption that there should be a independence of the process, but there are significant prosecution or could make it virtually automatic after an difficulties setting up such a body solely to prosecute police unlawful killing verdict. Cases would however still have to officers. be screened as they progressed to avoid them failing at a later stage – no-one benefits from flawed cases proceeding Transferring responsibility for charging to another only to collapse at trial. existing body (with the CPS then pursuing the case) offers largely symbolic value if the decision is transferred to the All deaths in custody should be investigated at the very IPCC; and if the decision is passed to the coroner’s court start as homicides. The securing of evidence is the basis (so the verdict could act as the committal stage for any both for the inquest proceedings and for any criminal subsequent criminal trial) risks an uncomfortable mix of prosecution. Any flaws during the investigation will powers for the coroner. The (coroner’s) investigation and jeopardise the later process. Liberty believes this may help criminal prosecution should remain separate and ensure better investigations pending the time when the independent. IPCC takes over the role from the police.

The favoured option is to leave the system as it is but to The possibility of widening the range of criminal improve the performance of the Crown Prosecution sanctions to cover more categories of incidents and

3 different degrees of blame in death in custody cases was adjudicating over an adversarial process – but considered but rejected. While the current limited options they should retain some inquisitorial powers (e.g. in the criminal law may contribute to the difficulties in to call witnesses) securing convictions following deaths in custody, that does • There must be a right to legal representation: means not necessarily justify watering-down the law itself. The testing for legal aid in inquests concerning deaths in law should be the same for all: the police should not be custody should be abolished subject to a different form of criminal liability to other members of the public.The creation of a different offence • Relatives of the deceased should have the rights of a would constitute such differential treatment. formal party to civil litigation • The inquest must be more accessible, language must Improvements need to be made in the use of be simplified, and a designated person must be pathologists. One way to do this would be to set up a legal assigned responsibility for the welfare of the family framework to structure their procedures in these cases.The and for explaining the process work of pathologists itself also needs to be more effectively • The inquest jury must be retained for all inquests monitored. The coroner and the pathologist should into controversial deaths proceed with their duties quickly in order to enable the release of the body to the bereaved as soon as possible after • The jury must have more powers the death. • Recommendations must be a regular component of the inquest verdict.These must be published, their Overall conclusion and recommendations implementation must be monitored, and a publicly accessible database must be created The system for investigating deaths in custody needs • Pre-inquest disclosure must be compulsory fundamental reform. In particular: • The process must be speedier

• The dominant link with the police in investigations • The role of the Attorney General in giving fiats as a must be broken preliminary to overturning inquest decisions should be abolished • Every death in custody must be investigated as a possible homicide • CPS performance must be improved – possibly • All custody deaths must be investigated through creating a separate, specialist deaths in independently. The IPCC must be in charge of the custody unit reporting directly to either the investigation into police custody incidents; a Director of Public Prosecutions or the Attorney reformed and more independently-organised prison General ombudsman system should be in charge of the • Coroners could be integrated into the civil justice investigation into prison deaths; and an equally system. A new right of appeal to the High Court on independent system must be created for deaths in points of law should be established psychiatric hospitals • The privilege against self-incrimination should be • An over-arching standing commission should be abolished – but evidence thus given should not be created to learn lessons from deaths in any admissible in any subsequent criminal trial institution in which a person has been detained; to monitor progress on preventing deaths and • Clearer procedures and monitoring are needed for recommendations from inquests; and to spread good the work of forensic pathologists practice • A Chief Coroner or President of Coroners could • Liberty re-emphasises that, in the long term, the help implement monitoring, raise standards, ensure majority of investigating personnel in the IPCC regular training, publish guidance on good practice must not be police-related: the ratio of non-police and deal with complaints. to police must be at least 3:1. • There should be a presumption in the Code for Further: Crown Prosecutors that a prosecution will follow a • Coroners should have a more judicial role, verdict of unlawful killing, subject to the evidence test.

4 I. INTRODUCTION

According to INQUEST,1 627 people have died in where the deceased was arrested or detained in charge of a police custody since 1990. In the year from April 2001 – constable, and where the deceased was otherwise in the March 2002, 35 people died in police custody (in the year hands of the police. 1998-99, that number was 65).These figures are based on a particularly broad definition of ‘in custody’ (see box), This, inter alia, covers deaths: which encompasses almost all situations where people die • when suspects are being interviewed by the police and some form of policing action was involved. This but have not been detained statutory definition perhaps goes beyond most people’s • when persons are actively attempting to evade arrest understanding of the term. • when persons are stopped and searched or questioned by police But whatever the definition adopted, one fact remains • when persons are in police vehicles (other than beyond dispute: the numbers and the circumstances in whilst in detention) which people continue to die in contact with the police must be a cause for the most serious concern.This research • when there is a siege situation or ambush examines the system for investigating all controversial • when persons are in care of police having been deaths that involve the police. It is clearly essential that detained under the Mental Health Act such a study take the broadest possible view,of how all such • when children or young persons are in police deaths ‘in police custody’ are investigated and what protection under the Children’s Act 1989. improvements can be made.That is what we endeavour to do here. The Home Office is proposing to define four categories of deaths: Many of the issues raised, conclusions found, and • Fatal road traffic accidents involving police officers recommendations made in this report are also relevant to deaths in prison custody and under detention in mental • Fatal shooting incidents involving police officers health institutions. However, the main focus of this report • Deaths in police custody is on deaths in police custody – because such incidents • Deaths following other types of contact with the illustrate the problems involved very clearly. police. This research looks at the system for investigating all Statistics published by the Home Office, the Police controversial deaths involving police contact that require Complaints Authority and INQUEST all differ on investigation.This includes all the above categories. numbers of deaths in police custody – because all adopt a different definition. The PACE definition of deaths in The issue of contentious deaths in custody, their custody used by INQUEST and by this report is extremely investigation and the treatment of bereaved people, must broad - so much so that most of the deaths in these statistics remain firmly on the political agenda. Since the early do not occur in 'custody' in the narrow sense of the word. 1990s, INQUEST has found that people from minority ethnic groups are disproportionately represented amongst Definition of deaths in police custody those whose deaths have involved the use of force or serious medical neglect.2 This is now acknowledged by the Deaths in police custody include situations where the Police Complaints Authority.3 It was not until April 1996 deceased was in police detention as defined by section that the police service monitored the ethnic origin of those 118(2) of the Police and Criminal Evidence Act 1984, i.e. who die in custody.The disproportionate number of black

1 INQUEST is the only non-governmental organisation in Britain that works directly with the families and friends of those who die in circumstances requiring an inquest, providing an independent free legal advice service on inquest procedures, the rights of bereaved people in the Coroner’s Court and the investigation of contentious deaths. In the ten years from January 1992 to December 2001, INQUEST worked with the families of over 2,100 people who died in circumstances requiring an inquest. Its cases break down as follows: deaths in police custody (15%), deaths in prison custody (32%), deaths involving psychiatric custody and/or care (9%), deaths involving clinical negligence (12%), and miscellaneous deaths (at work, road traffic accidents, CO gas, murder, etc., 32%). 2 See appendix. 3 Annual Report 1997:20

5 people, in particular, dying in these circumstances has the lack of a fully independent investigatory process.5 caused considerable disquiet in the black community and led to several campaigns for justice. The inquiry into the death of Stephen Lawrence also acknowledged this issue:6 Public confidence in the police has been undermined by years of controversy. The deaths in Brixton of Wayne 45.21…“Deaths in Custody”. We are clear that this issue is Douglas (after being restrained by police officers in 1995) outside our terms of reference. But we cannot fail to record the and Derek Bennett (shot by police in 2001) were followed depth of the feelings expressed. There is a need to address the by angry street disturbances. The deaths in police custody perceptions and concerns of the minority ethnic communities in this of Joy Gardner, Brian Douglas, Wayne Douglas, Shiji regard. Such an issue if not addressed helps only to damage the Lapite, Richard O’Brien, Ibrahima Sey, Roger Sylvester, relationship between police and public, and in its wake there is an Glen Howard, Harry Stanley and Christopher Alder have atmosphere which hinders the investigation of racist incidents and seen high-profile campaigns by family and friends to bring crime. the circumstances of the deaths into the public domain. The limited ambit of investigations, ineffective inquiries, The failure to prosecute police officers following and the failure to prosecute those responsible have all been unlawful killing verdicts has been and remains one of the issues for the bereaved families of those who have died, most contentious issues in relation to the approach by the especially in the context of deaths in custody.7 They have State to deaths in custody.4 also increasingly become an issue in law,with the arrival of the Human Rights Act 1998 and the run of cases that the In 1988, the United Friends and Families Campaign was government has lost, in both the European Court of set up by families of black people who had died in custody, Human Rights and the domestic courts, in relation to to make the voices of families and friends heard over the Articles 2 and 3 of the European Convention on Human failure to bring police to account for custody deaths. The Rights.8 2001 film ‘Injustice’ followed families’ struggles for justice for their relatives who have died in police custody. Despite Reform is long overdue. In the past there has been a threats of legal action claiming defamation by a number of failure to reform the coroner system.The Brodrick report, police officers supported by the Police Federation, it was the product of over eight years’ work,9 went largely widely shown. unimplemented. There has been resistance among some coroners to examining the system closer as a first step Reports and lobbying by Liberty and INQUEST were towards reform.10 There have to date been no successful instrumental in leading to the conclusion by the United prosecutions of police officers following deaths in custody11 Nations Committees on the Elimination of Racial – not even since the Butler inquiry12 examined the Discrimination (CERD) and Against Torture (CAT) that decision-making process of the Director of Public there are serious problems relating to deaths in custody and Prosecutions in such cases.

4 Deaths in police custody: the issues for London, INQUEST forthcoming 5 Coles, Shaw, Deaths in Police Custody: the issues for London, INQUEST report to CERD covering 1996-2000, forthcoming. 6 Report of the Inquiry into the Death of Stephen Lawrence, January 1999. 7 For more detail see Howard Davis, Phil Scraton, Beyond Disaster – Identifying and Resolving Inter-Agency Conflict in the Immediate Aftermath of Disasters; Phil Scraton,Ann Jemphrey, Sheila Coleman, No Last Rights – The denial of justice and the promotion of myth in the aftermath of the Hillsborough Disaster; Sir Louis Blom-Cooper, Comment, P.L.autumn 2000, 560. 8 Keenan v United Kingdom [2001] 10 BHRC 315; R (Wright and Bennett) v.SSHD, [2001] EWHC Admin 520; Jordan v United Kingdom, 11 BHRC 1; McKerr v United Kingdom, [2002] 34 EHRR 20; McCann v United Kingdom [1995] 21 EHRR 97; Kelly and Others v United Kingdom, no. 30054/96, 4 May 2001; Shanaghan v United Kingdom, no. 37715/97, 4 May 2001; and most recently McShane v United Kingdom, [2002] 35 EHRR 23. The recent series of Article 2 cases which the government has lost in Strasbourg originated in Northern Ireland where the problems in relation to the inquest system have perhaps been at their most acute.While the system is largely comparable to that in England and Wales, there are some aspects which are crucially different, most particularly that in Northern Ireland juries are not empowered to reach verdicts. Instead they can merely record findings which are strictly limited to the name of the deceased, where s/he died, and how s/he died, i.e. by what means.The system is so flawed that many of the approximately 360 killings by the state in Northern Ireland have received scant public scrutiny. It is this lack of official accountability which led to the judgments in Jordan, Kelly, Shanaghan, and McKerr, and also most recently in McShane. 9 Report of the Committee on Death Certification and Coroners, 22 September 1971, Cmnd. 4810, chaired by Norman Brodrick QC. 10 For more detail, see the inquiries into the Ashworth Hospital or the Marchioness Inquiry. 11 Successful prosecution is used here to mean a prosecution leading to a conviction. 12 Gerald Butler QC, Inquiry into Crown Prosecution Service Decision-Making in Relation to Deaths in Custody and Related Matters, August 1999.

6 The lack of a genuinely independent mechanism to remained a fact-finding exercise and (generally) not a investigate deaths in custody has meant the police method of apportioning guilt.18 effectively investigating themselves (under the eye of the Police Complaints Authority).13 Not surprisingly, this has The controversy surrounding some high-profile created an issue of confidence for many people. The new inquests has led to calls for the introduction of statutory Independent Police Complaints Commission will, from public inquiries. In the Marchioness riverboat disaster, for 2004, go some way to tackling this problem. But the example, the original coroner was criticised by the Court formation of the IPCC is not a panacea to cure all the of Appeal in relation to his decision not to resume the many failings of the inquest system with regard to deaths in inquest (a full inquest was eventually held five years after custody. the accident, following other legal proceedings and under a different coroner).19 Growing dissatisfaction with the This report examines those shortcomings – in the current system, and the number of cases that the British investigation, the inquest procedure, and at the Government has recently lost in the European Court of prosecution stage. The following historical background Human Rights in Strasbourg (and in the domestic courts) and discussion of the requirements of Article 2 of the in relation to Article 2 and 3, make a reform pressing. European Convention on Human Rights set the scene for determining the extent of obligations on the Developments in the European Court of Human Government to put in place an effective and efficient Rights and the introduction of the Human Rights Act as form of inquiry. well as recommendations from a number of high-profile inquiries such as those into the death of Stephen Lawrence 2. Background and the Marchioness riverboat disaster have also pushed forward the impetus for change. The coroner was established by law in 1194,14 to look after cases in which the Crown was interested. Coroners These pressures may have helped lead to the current also sat as judges to hear criminal cases from time to time:15 series of reviews with an eye to reforming the system. this function was eliminated by the 16th century, but the Dame Janet Smith is investigating the role and function of inquest jury continued to apportion blame for murder, investigations as part of the Shipman Inquiry.20 This inquiry manslaughter or infanticide.16 was established by Parliament in January 2001, to consider and examine issues surrounding the deaths of the patients The inquisitorial function of the coroner progressively of Dr Harold Shipman and to make recommendations to became dominant and the judicial role obsolete. The avoid such incidents in future. Shipman managed to avoid Brodrick Committee17 extensively examined the role of referrals to the coroner, and thus investigations, in all but a the coroner in modern society and in 1971 made few of the cases in which his patients died.21 Phase 1 of the numerous recommendations. Since then the inquest has inquiry examined the individual deaths and reported on 19

13 For more detail, see Harrison and Cunneen, An Independent Police Complaints Commission, Liberty Report, 2000. 14 Article 20 of the Articles of Eyre. 15 For more detail see Matthews, Foreman, Jervis on Coroners, pp.3-9. 16 Section 4 of the Coroners Act 1887, as amended by the Coroners (Amendment) Act of 1926. 17 Committee on Death Certification and Coroners, 22 September 1971, see note 5. 18 Apportioning guilt at inquests was finally outlawed after the inquest into the death of Lord Lucan’s nanny in 1975, by the Criminal Law Act 1977. See also R. v South London Coroner, ex p.Thompson (1982) 126 S.F.625, D.C. 19 The coroner Knapman supported the view that the preceding government inquiry had established all the facts and that not much purpose would be served by continuing with the inquest.The Court of Appeal ruled that this decision had been influenced by prejudice, and that the inquest should be resumed with another coroner; for more detail, see M. Ryan, op. cit. at p. 116. 20 The Shipman Inquiry was established under the Tribunals of Inquiry (Evidence) Act 1921. Its Terms of Reference are: a.After receiving the existing evidence and hearing such further evidence as necessary, to consider the extent of Harold Shipman's unlawful activities. b.To enquire into the actions of the statutory bodies, authorities, other organisations and responsible individuals concerned in the procedures and investigations which followed the deaths of those of Harold Shipman's patients who died in unlawful or suspicious circumstances. c. By reference to the case of Harold Shipman to enquire into the performance of the functions of those statutory bodies, authorities, other organisations and individuals with responsibility for monitoring primary care provision and the use of controlled drugs; and following those enquiries, to recommend what steps, if any, should be taken to protect patients in the future, and to report its findings to the Secretary of State for the Home Department and to the Secretary of State for Health. The inquiry team is: Dame Janet Smith DBE (chairman), Caroline Swift QC, Christopher Melton QC,Anthony Mazzag, Michael Jones, Henry Palin, Ita Langan, Julie Denham. 21 He did this by claiming to be able to diagnose and therefore certify the cause of death and persuaded the relatives that there was no need for a post- mortem. For more detail, see Dame Janet Smith, Summary of the first report, phase 1, at para. 27, 19 July 2002.

7 July 2002. A report is expected to be published in through the Police Reform Act 2002.28 The IPCC will spring/summer 2003 on the first stages of phase 2, with a replace the existing Police Complaints Authority: from final report in 2004. April 2004, it will investigate deaths in police custody.The context for its establishment is in the government Also in 2001, the Home Office established a team to framework document in December 2000.29 The IPCC is conduct a Fundamental Review of coroners’ services.22 The expected to conduct independent investigation into most Home Office noted that the inquest system is out of date. deaths in custody, but it is not a requirement that Recent public inquiries such as Bristol, Alder Hey, independent investigators are used in every death in Shipman and Marchioness have exposed the shortcomings custody case. The IPCC will also be able to make of the system. Public expectations, both in terms of public recommendations and give advice in relation to general service and the product of inquiries by coroners, have run police practices that it considers could be improved.30 The well ahead of what coroners can currently deliver. The main focus must now be on ensuring sufficiently Home Office sees an overhaul to modernise the coroner independent and expert staffing of the IPCC and the system as essential, in line with plans to reform the criminal creation of public confidence in its work. justice system.23 The Coroners Review is expected to report in spring 2003.24 3. Obligations under European Law31

The Attorney General and the Director of Public In line with Article 2 of the European Convention on Prosecutions have initiated a separate review of the role of Human Rights, the Court must, in making its assessment, the Crown Prosecution Service (CPS) in prosecuting cases subject deprivations of life to the most careful scrutiny.32 relating to the death of an individual in prison or police Article 2 prohibits the State from taking life and places on custody.25 However, the review has a limited remit, focusing it a positive duty to protect life.33 This right has been only on key aspects of the CPS’ role. It will not reopen or extended to include the prevention of suicides by persons reconsider individual cases.26 This is a matter of concern to in State custody.34 bereaved families.27 The Article 2 duty to protect life also requires the The government has now established a new mechanism proper investigation of all suspicious deaths.35 The for investigating complaints against the police – the investigation must be independent, prompt, contain a Independent Police Complaints Commission (IPCC) – sufficient element of public scrutiny, and be capable of

22 The Coroners Review Team.Its terms of reference included: to consider, in respect of England,Wales, and Northern Ireland, the most effective arrangements for identifying the deceased and for ascertaining and certifying the medical cause of death for public health and public record purposes, having regard to proposals for a system of medical examiners.The team is made up of:Tom Luce, former Head of Social Care Policy at the Department of Health (chair), Elizabeth Hodder, former Deputy Chair Equal Opportunities Commission, Deirdre McAuley LLB, Citizens Advice Bureau Advisor, Sir Colin Berry, former Professor of Morbid Anatomy University of London,Anthony Heaton-Armstrong, Barrister-at-Law, Iqbal A K M Sacranie OBE, Secretary of the Muslim Council of Britain, Mike Gallagher, Secretary, Sophy Osborn, Secretariat. 23 Announcement upon the appointment of Home Office Minister Beverley Hughes, on 26 July 2001. 24 See also the consultation paper. 25 The review process was initiated in spring 2002 and consisted of three stages: the publication of a consultation paper (April 2002), a consultative workshop which took place on 24 April 2002, and finally a seminar which took place on 21 May 2002. In the light of issues raised at the seminar, the Review’s report was postponed and is now expected in spring 2003. 26 Nor does it examine related issues such as prevention, training or other non-procedural questions Answering the Parliamentary Question about the review by the Attorney General, Written Answers, [13 December 2001], 237. 27 See also UFFC submission to Attorney General Review. 28 A new police complaints procedure was originally envisaged when the government issued a consultation in May 2000 called Complaints against the Police:A consultation document. This paper was based on a KPMG study commissioned by the Home Office - Feasibility of an independent system for complaints against the police - and the Liberty publication An Independent Police Complaints Commission.The consultation was followed by a framework document called Complaints against the police: Framework for a new system, which was then incorporated into part 2 of the Police Reform Act. 29 For more detail, see Home Office, Complaints against the Police – Framework for a New System, London 2000. 30 Section 10(1)(e) of the Police Reform Act. 31 Article 6 (right to a fair trial) does not apply directly to the coroner’s courts because the inquest procedure does not involve the determination of a person’s civil rights obligations. However, it may help to determine basic standards of justice and fair procedure, and as such would require more attention (especially its elements of the rights to a fair hearing, public hearings, trial within a reasonable time, access to justice, and disclosure). However, the limited ambit of this paper does not allow for a detailed discussion of this. 32 McCann v United Kingdom [1995] 21 EHRR 97 at para 150. 33 X v United Kingdom [1978] No. 7154/75, 7 Dec 1978 DR14 p31. 34 For more detail, see Keenan v United Kingdom [2001] 33 EHRR 38, subsequently applied in R (Amin and Middleton) v Secretary of State for the Home Department [2002] 3 WLR 505. 35 The Commission in McCann v United Kingdom described this procedural aspect as the minimum requirement of a mechanism whereby the circumstances of a deprivation of life by the agents of a state may receive public and independent scrutiny.

8 leading to a determination of whether State agents are health institutions. Clearly, this is only possible where the liable.36 Convention issues that have arisen include the situations are similar enough to justify such analogy.Where absence of a duty on the authorities to disclose material, there are differences, we point them out. the lack of independence in police investigations, delays to the inquest and the criminal investigation, the lack of We have not examined cases where the action (or public scrutiny, and procedural hurdles in the system. inaction) of state agents has not resulted in a death. This was simply due to time and space constraints. We believe 4. Focus of this report this area should be examined: the issues are pressing as they highlight other violations of rights of detainees, ones that We examine the current system, specifically the may otherwise lead to fatalities in future. investigation, the inquest, and the criminal prosecution, and make recommendations for improvement. It is our We have concentrated on institutional and procedural intention to use the data collected and the analysis issues, not on the issues facing individual police officers, undertaken, to inform the current debate on deaths in prison officers or doctors. We intend to highlight custody.We have also drawn international comparisons and shortcomings in the system and not individual liability (and established international links with Canada and Australia, we do not comment in detail on individual cases).We have with an aim to share experiences and learn from each other. not made substantive recommendations on how to prevent deaths in custody. More research on how to prevent As outlined earlier in this chapter, it was not an easy task further deaths is undoubtedly needed; but the remit of this to define ‘death in custody’ in the context of the issues we research is restricted to procedural considerations after a examine. The term has recently been re-defined by the death has occurred. Home Office; however, we have not employed the same definition.37 In the context of this report – the investigation 5. Methodology process into deaths in which the police were involved – we believe it essential to adopt a broad definition. We This report is based on a detailed examination of the therefore take deaths in custody to involve all those where process following a death in police custody.The source of the deceased was arrested or detained in the charge of a information was primarily secondary literature, and cases in constable, or where the deceased was otherwise in the recent years. Additional information was gathered through hands of the police. This must include fatal shooting attending inquests and judicial reviews; and conducting incidents involving the police and deaths following any interviews with key players in the field. This research type of contact with the police.38 During this research, we involved interviews in the UK, Canada and Australia.The took the advice of our Advisory Committee and extended court attendances and interviews contributed to the our remit so that we could consider deaths in prison project not as a means of empirical research but rather as custody and to a more limited extent deaths in mental an additional resource to provide up-to-date background health institutions.39 information and inform a deeper analysis. INQUEST gave the researcher access to its considerable information and However the main focus of this report remains on resources. She also met with the staff team who have deaths in police custody – because such incidents illustrate extensive experience of working with bereaved people, the problems involved very clearly.We felt that more depth monitoring the investigation and inquest process following could be attained if one form of custody was analysed in such deaths and an understanding of the legal and political detail. We hope that the issues raised, conclusions found, history of deaths in custody. and recommendations made will be relevant in addressing deaths in prison custody and under detention in mental An independent Advisory Committee has overseen the

36 For more detail, see Jordan v United Kingdom 11 BHRC 1 and Edwards v United Kingdom, [2002] 35 EHRR 19. However, in R (Amin v Middleton) v the Secretary of State for the Home Department [2002] 3 WLR 505, the Court of Appeal seemed to move away from these criteria and argued that it must be up to the domestic courts to decide what the criteria must be on a case-by-case basis. 37 See appendix 5. 38 See section 118(2) of the Police and Criminal Evidence Act 1984. 39 We are aware that custody should also include detention by immigration services, however this would be more appropriately addressed by a separate, in- depth study.

9 project.40 Its role was invaluable, both in informing and Thereafter, we have sections focusing on the police guiding the direction for the project, and in providing a investigation, the inquest procedure, and the Crown forum in which issues could be raised and potential Prosecution Service. In each of these sections we outline solutions discussed.The committee met regularly to discuss what the current procedures are, what the problems are papers prepared by the senior researcher, which outlined with these procedures, and what options we see for the concerns, problems and possible solutions. improvement.

6. Structure In the final section, we make recommendations for the overall improvement of the system. We have taken these The structure of the report was led by the issues that we recommendations from the options set out earlier and set feel need to be tackled.Thus,the first of the following sections up a coherent map for an improved procedure following a outlines the international obligation derived from the death in custody.This map is targeted principally at police European Convention on Human Rights following a death custody deaths. However, the reforms suggested should also in custody.This section was written by Danny Friedman, an be considered for deaths in prison and in mental health expert in this area and a barrister at Matrix Chambers. institutions.

40 For the members of this Advisory Committee, please see the Acknowledgements at the beginning of this report.

10 2. Deaths in Custody and the European Convention on Human Rights1

1. Context2 Human Rights (ECHR) are, however, far more exacting than under domestic law and at time of writing have According to the South African Constitutional Court, already been the source of fundamental review of inquest “Those who are entitled to claim [protection under the law in this country.7 In this introductory chapter, we focus right to life must most notably] include the social outcasts on three aspects of Article 2 in particular: and the marginalised people of our society”.3 In this respect the quality of any human rights culture can be • the state’s positive obligation to prevent a real and especially judged by the manner in which it treats deaths in immediate risk to life custody. One of the key premises of the Liberty project is • the free-standing obligation of the State to carry out that the fundamental rights of those who die in custodial an effective investigation situations and of their families are not properly respected • the obligation of the State to make public findings by the inquest system. Moreover, the current system about the cause and responsibility for a death, where enables institutions of the state to be insufficiently it involves the direct or indirect conduct of State scrutinised when people die as a consequence of acts and agents. omissions by its agents. In such circumstances, the provision of an inadequate inquiry damages the bereaved and 2. Core Principles undermines the quality and legitimacy of the public authorities whose conduct has gone without scrutiny.This The text of Article 2 of the Convention reads as follows: adversely affects us all. 1. Everyone’s right to life shall be protected by law. No Within our jurisprudence, the coroner’s court is a fossil- one shall be deprived of his life intentionally save in like entity.4 It bears the layers of almost every era of legal the execution of a sentence of a court following his history from feudal policing, to 19th century statehood conviction of a crime for which this penalty is construction and 21st century human rights culture. The provided by law. idea that the law must take positive steps to protect life can be found in Blackstone’s Commentaries:‘The law not only 2. Deprivation of life shall not be regarded as inflicted regards life and member, and protects every man in the in contravention of this Article when it results from enjoyment of them, but also furnishes him with everything the use of force which is no more than is absolutely necessary for their support’.5 During the 19th century,local necessary: coroners like Thomas Wakeley rose to public prominence a. in defence of any person from unlawful violence; by attacking the inhuman conditions of Victorian prisons b. in order to effect a lawful arrest or to prevent the and factories. In the last twenty years the organisation escape of a person lawfully detained; INQUEST has been central to developing an indigenous c. in action lawfully taken for the purpose of human rights consciousness in relation to deaths in quelling a riot or insurrection. custody. There are thus a number of pre-Human Rights Act domestic cases that have laid particular emphasis upon 2.1 Application of Article 2: General Principles the need for full and fearless inquiries, especially in relation to custodial deaths.6 The right to life is often said to be the most The requirements of the European Convention on fundamental of all human rights, the basic pre-condition of

1 We are indebted to Danny Friedman, Barrister, Matrix Chambers, for providing this introductory chapter. 2 This report examines issues arising in relation to Article 2.The scope does not allow a focus on Article 14 in relation to which further issues arise. 3 State v Makwanyane [1995] 1 LRC 269, 313. 4 L.Thomas, D. Friedman and L. Christian, Inquest:A Practitioner’s Guide (Legal Action, 2002), chapter 2. 5 Blackstone’s Commentaries on the Laws of England, 4th ed, 1876, vol 1, p101 6 In re Rapier [1988] QB 26; R v Southwark Coroner ex p Hicks [1987] 1 WLR 1624; R v Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1, 18-18 and 26; R v HM Coroner for Wiltshire ex p Clegg [1997]161 JP 521 at 531; R v HM Coroner for Western District of East Sussex ex p Homber [1994] 158 JP 357, 379H ; R v HM Coroner ex p Lisa Douglas–Williams [1999] 1 All ER 344 at 347-348; R v DPP ex p Manning and Melbourne [2001] QB 330, paragraph 33 and R (Wright and Bennett) v SSHD [2002] HRLR 1, paragraph 63 7 See in particular R (Wright and Bennett) v SSHD [2002] HRLR 1; R (Amin and Middleton) v SSHD [2002] 3 WLR 505

11 the enjoyment of other rights.8 Variants of the ECHR right person’s right to life “shall be protected by law.” It has been to life are given equivalent prominent protection in other held that this requirement enjoins the State not only to human rights instruments.9 It is perhaps obvious that any refrain from the intentional and unlawful taking of life, but constitutional bill of rights dedicated to the protection of also to take steps to safeguard the lives of those within its individual human beings should have the right to life and jurisdiction.14 The use of the word ‘protection’ indicates a the prohibition on torture and inhuman and degrading level of effective security that goes beyond the word treatment as its most fundamental provisions. The ECHR ‘respect’ used elsewhere in the Convention. In addition the deals with these rights in Articles 2 and 3 respectively. State is required to give appropriate training, instructions These articles are said to encompass the basic values of and briefing to its agents who are faced with situations democratic societies.10 In any consideration of cases where the deprivation of life may take place under their involving either loss of life and/or torture and inhuman control or field of responsibility.15 and degrading treatment in custody three overriding considerations must be borne in mind: The fact that a State is subject to a positive obligation to protect life has been recognised in a number of European • The relevant provisions of Articles 2 and 3 should be Court cases, most notably Osman v United Kingdom.16 In applied so as to make their safeguards practical and that case the Court was considering a situation in which 11 effective the police had been alerted to the potential risk of violence • Articles 2 and 3 admit no peacetime derogation to a father and son posed by an apparently deranged and under Article 15, therefore the level of a discretion obsessive teacher.The critical reasoning of the Court is set afforded to a decision-maker is far less than in other out in paragraph 116 of the judgment: Articles in the Convention12 • Deprivations of life must be subject to the most “In the opinion of the Court where there is an allegation careful scrutiny. Such scrutiny must focus upon not that the authorities have violated their positive obligation to only those who were allegedly directly responsible protect the right to life…, it must be established to its for the death, but the State organisation or operation satisfaction that the authorities knew or ought to have that provided the context in which the death took known at the time of the existence of a real and immediate place.13 risk to the life of an identified individual or individuals … and that they failed to take measures within the scope of 3. The State’s positive obligation to prevent a real their powers which, judged reasonably, might have been and immediate risk to life expected to avoid that risk.The Court does not accept the Government’s view that the failure to perceive the risk to The first sentence of Article 2(1) emphasises that a life in the circumstances known at the time or to take

8 R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514 at 53 and, more recently, R v Lord Saville of Newdigate & ors ex parte A and ors [2000] 1 WLR 1855 at 1877. In Jordan v United Kingdom 11 BHRC 1, the European Court of Human Rights emphasised the importance of Article 2, stating that it “ranks as one of the most fundamental provisions in the Convention, to which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective.” See also State v Makwanyane [1995] 1 LRC 269 at 313 in which the South African Constitutional Court recognised the right to life in the following statement of principle:“The rights to life and dignity are the most important of all human rights, and the source of all personal rights … By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.And this must be demonstrated by the state in everything that it does …” 9 For example a decision under Article 21 of the Indian Constitution has particularly emphasised that ‘[c]ustodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law’– see Basu v State of West Bengal [1997] 2 LRC 1 at 12. 10 McCann v United Kingdom (1996) 21 EHRR 97, 161-162, paragraphs 146-150; Andronicou and Constantiou v Cyprus (1997) 25 EHRR 491, paragraph 171. For similar considerations in relation to Article 3 see Chahal v United Kingdom (1997) 23 EHRR 413 and Assenov v Bulgaria (1998) 28 EHRR 652, paragraph 93. 11 McCann, paras 146-147; Osman v United Kingdom [1999] 29 EHRR 245, paragraph 116 12 Bugdaycay v Secretary of State of State for the Home Department [1987] AC 514; R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855. 13 McCann v United Kingdom, paragraphs, 181 and 201; Tomasi v France (1992) 15 EHRR 1; Ribitsch v Austria (1995) 21 EHRR 573, Andronicou and Constantiou v Cyprus (1997) 25 EHRR 491, paragraph 186; Edwards v United Kingdom, [2002] 35 EHRR 19, para 61 14 Osman v United Kingdom, paragraph 115; LCB v United Kingdom (1998) 27 EHRR 212, paragraph 36. See also X v UK 14 DR 31 (vaccine damages). In R (Amin and Middleton) v Secretary of State for the Home Department [2002] 3 WLR 505, the Court of Appeal summarised the requirements of Article 2 in the following way:“Article 2 imposes two distinct but complementary obligations on the State. Putting the matter very shortly, the first is a substantive obligation not intentionally to take life and also to take reasonable preventative measures to protect an individual whose life is at risk whether from the criminal acts of others or suicide. The second is an adjectival, procedural obligation to investigate deaths where arguably there has been a breach of the substantive obligation.” 15 McCann v United Kingdom, paragraph 201; Andronicou and Constantiou v Cyprus, paragraph 186 16 5 BHRC 293

12 preventive measures to avoid that risk must be tantamount 4. A free-standing right to an effective investigation to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be The obligation to take positive steps to protect life also incompatible with the requirements of Article 1 of the requires some form of effective investigation where death Convention and the obligations of Contracting States under has occurred in circumstances which engage either Articles that Article to secure the practical and effective protection 2 or 3 of the Convention.23 The principle that a procedural of the rights and freedoms laid down therein, including right to an investigation into a death could be taken as a Article 2. For the Court, and having regard to the nature of free-standing right under Article 2 was first identified in the right protected by Article 2, a right fundamental in the the case of McCann v United Kingdom. Thereafter a number scheme of the Convention, it is sufficient for an applicant to of cases involving the lack of effective investigations into show that the authorities did not do all that could be deaths in custody and missing persons in Turkey resulted in reasonably expected of them to avoid a real and immediate the Court applying greater emphasis to the principle.24 risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light In relation to deaths that result from State-sponsored of all the circumstances of any particular case”. violence there is a far-reaching requirement to consider the propriety of the activity.25 Thus in McCann and Andronicou The obligation to take positive steps to protect life is not the inquiry deemed necessary by the Court went limited to the taking of steps to prevent unlawful violence significantly beyond an investigation of the means by (whether by agents of the state or by private individuals which the victims came by their deaths and extended to against one another).The right has also been identified as the operational contexts in which the deaths took place. In extending to the taking of positive steps to prevent McCann the inquest itself was held to be a sufficiently environmental disasters17 as well as suicides by persons in effective inquiry; not surprisingly so given that there was State custody.18 Thus, in Keenan v United Kingdom19, the major international interest in the inquest and its Court acknowledged that the obligation under Article 2 subsequent aftermath and what resulted was clearly not an extended to a duty to prevent self-inflicted deaths in average coroner’s inquest. The question of whether the custody when the authorities were on notice of a ‘real and inquest system in the UK amounted to an effective remedy immediate risk’ to life.20 A lack of proper medical treatment in and of itself was left unconsidered. However, the Court in a case where a prisoner is suffering from an illness could emphasised in McCann that the protection conferred by in certain circumstances amount to a violation of Articles Article 2(1) 2 and 3.21 Finally, the failures of the authorities to communicate relevant and reasonably obtainable “…would be ineffective, in practice, if there existed no information will give rise to a violation of Article 2 if the procedure for reviewing the lawfulness of the use of force subsequent information deficit leads to a person not being by State authorities.The obligation to protect the right to adequately cared for when they could have been.22 life under this provision read in conjunction with the

17 LCB v United Kingdom (1998) 27 EHRR 212 18 Keenan v United Kingdom [2001] 33 EHRR 38 (subsequently applied in R (Middleton) v HM Coroner for Liverpool and SSHD, [2001] EWHC 1043, paragraph 49 19 33 EHRR 38. 20 In R (DF) v Chief Constable of Norfolk Police [2002] EWHC 1738 (Admin) Crane J. considered the application of the Osman/Keenan threshold test of a real and immediate risk to life in the context of a refusal by the Prison Service to admit a life sentence prisoner to a Protected Witness Unit. He commented “it does not make it easy for those who have to take decisions, or for courts reviewing those decisions, if the search for a phrase encapsulating the threshold of risk is a chimaera” (para 33). He pointed to the difference between the situation in a prison as compared with the difficulties facing the police in terms of protecting an individual at large in the community in that the prison authorities will generally be aware that a prisoner who has helped the authorities is at risk, they are in a ready position to take steps to avoid any risk and they are less likely to be inhibited by restraints imposed on the scope of their actions by the need to respect the human rights of others since providing a protective regime is unlikely to affect the rights of others. On the issue of the “immediacy” of the risk, he held that it should not be understood, in the context of admission to a protective regime, to mean that the threat will necessarily materialise in the very near future, rather “the question to be asked is whether there is a real risk to the life of a prisoner if he is not admitted to a PWU, rather than some alternative regime, for whatever period is being considered. However immediacy requires that the risk must be present and continuing” (para 38). 21 McFeeley v UK (1981) 3 EHRR 161; Keenan (op cit) at paragraph 110 and R (Wright and Bennett) v SSHD, [2002] HRLR 1 , paragraph 54-57; 22 Edwards v UK, 14th March 2002, para 61. In relation to the same principle in domestic law see R v HM Coroner for Swansea and Gower ex p Chief Constable of Wales [2000] 164 JP 191; R v HM Coroner for Coventry ex p O’Reilly [1996] 160 JP 749 23 McCann v United Kingdom, paragraph 161 24 Kaya v Turkey [1998] 28 EHRR 1, paragraph 86 25 The mere knowledge of the killing on the part of the authorities can give rise to an obligation under Article 2 to carry out an effective investigation into circumstances surrounding the death: Ergi v Turkey [2001] 32 EHRR 18.

13 State’s general duty under Article 1 of the Convention to Keenan had died before the coming into force of the ‘secure to everyone within their jurisdiction the rights and HRA, his mother could not pursue a claim under sections freedoms defined in [the] Convention’ requires by 7(1)(a) and 8 of the 1998 Act in respect of his ill-treatment implication that there should be some form of effective and death in prison.And as he was over 18 when he died, official investigation when individuals have been killed as a nor was it practical for her to pursue any claim either under result of the use of force by, inter alia, agents of the State.” the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Act 1976.29 In these circumstances, the It has become clear beyond peradventure that the right Court found, in addition to the breach of Article 3, that to an effective investigation into an arguable violation of Article 13 had also been violated, stating that it considered the right to life is a substantive entitlement under the that “in cases of a breach of Articles 2 and 3 of the ECHR. In other words, the lack of an effective Convention, which rank as the most fundamental investigation will in and of itself constitute a violation of provisions of the Convention, compensation for the non- Article 2. Moreover, the entitlement is not limited to death pecuniary damage flowing from the breach should in that occurs as a result of the use of force by agents of the principle be available as part of the range of possible state. Similar procedural expectations have now been remedies.”30 The fact that an individual is potentially able applied to self-inflicted deaths in prison26 and to to pursue a civil claim in relation to a death that engages circumstances that led to an inmate being placed in a cell Article 2/3 will not of itself discharge the Article 2 with a dangerous person.27 investigative obligation. As the European Court commented in Jordan v UK: The Strasbourg and post-HRA case law make clear that it is necessary to maintain a distinction between the free- “Civil proceedings would provide a judicial fact-finding standing Article 2 right to an effective investigation and the forum, with the attendant safeguards and the ability to Article 13 right to an effective domestic law remedy,which reach findings of unlawfulness, with the possibility of is capable of determining the liability of the State for a damages. It is however a procedure undertaken on the particular death and, if appropriate, awarding compensation initiative of the applicant, not the authorities and it does or just satisfaction. In Keenan v United Kingdom it was not involve the identification or punishment of any alleged accepted by all parties that the inquest into Mark Keenan’s perpetrator. As such, it cannot be taken into account in the death could not in law determine issues of civil or criminal assessment of the State’s compliance with its procedural liability and thus did not furnish the applicant with the obligations under Article 2 of the Convention.31” possibility of establishing the responsibility of the prison authorities or obtaining damages.28 Moreover, as Mark In both Jordan v United Kingdom and Edwards v United

26 Keenan v UK [2001] 33 EHRR 38. For a domestic recognition of the same principle see R (Middleton) v HM Coroner for Western Somerset and SSHD, 14th December 2001, per Stanley Burnton J approved by the Court of Appeal in R (Amin and Middleton) v SSHD [2002] 3 WLR 505 (a case which specifically finds that the limitation upon negligence verdicts imposed by R v Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1 violates the procedural obligation under Article 2 to sufficiently investigate the responsibility of the prison service in causing death). 27 See Edwards v United Kingdom, EctHR, 14th March 2002, paras 69-73. In R (Amin and Middleton) v SSHD [2002] 3 WLR 2002, the Home Secretary had originally sought to argue that the procedural obligation to investigate only arose if the relevant death occurred or is alleged to have occurred as a result of the use of force by State agents. Where a death resulted from a failure by the State to fulfil its positive duty to take steps to protect the life of someone in its care against a perceived risk – or a risk that should have been perceived – of death or serious injury at the hands of another, then the availability of the ordinary civil remedies in the domestic courts was said to suffice for Article 2 purposes. In the light of Edwards, however, the Government accepted that this distinction was unarguable and the Court of Appeal held at para 44 that “we should without hesitation have concluded that the procedural duty was engaged [on the facts of Amin] without the assistance of Edwards. A death in State custody, at the hands of another prisoner or (as in Middleton) at the deceased’s own hands, excites very anxious public concern. The State owes a pressing duty to minimise the risk of such a calamity, even if it cannot be altogether extinguished. The common law would impose such a duty, if it could find an appropriate litigious framework within which to make it good. Now however it is enough to say that such a duty lies within the scope of Article 2. When such a death takes place, the procedural duty to investigate is in our judgment undoubtedly engaged.” 28 The Court stated in para 127 that “Turning to the remedies available after Mark Keenan’s death, it is common ground that the inquest, however useful a forum for establishing the facts surrounding Mark Keenan’s death, did not provide a remedy for determining the liability of the authorities for any alleged mistreatment or for providing compensation.” As Jackson J. correctly pointed out in his judgment in R (Wright and Bennett) v SSHD [2002] HRLR 1, it was unnecessary in Keenan for the applicant to allege a freestanding breach of the Article 2 investigative obligation before the European Court of Human Rights as the substance of the complaint of a lack of an effective remedy in domestic law was addressed under Article 13. 29 See the concurring opinion of the ad hoc UK judge, Sir Stephen Sedley, in which he analyses the potential inadequacy of the HRA 1998 in terms of its ability to convert a coroner’s inquest into an effective Article 13 remedy. Insofar as his analysis is focusing on the inability of an inquest to award compensation/just satisfaction in relation to any breach of Articles 2/3 it is plainly correct; but his analysis of the difficulty of deploying s.3 of the HRA to override the content of Rule 42 of the Coroners’ Rules 1984 (which forbids the framing of a verdict in such a way as to appear to determine civil liability or a named person’s criminal responsibility) must now be read in the light of R (Middleton) v Home Secretary [2002] 3 WLR 505 at paras 83-93. 30 Para 129. 31 ECHR, 4th May 2001 – [2001] 33 EHRR 38.

14 Kingdom the European Court held that in order to satisfy been disclosed to the family and its advisers - but with a the requirements of Article 2, any investigation must satisfy requirement that the report not be disclosed to anyone the following criteria: else. In addition, a private investigation into race discrimination in the Prison Service being conducted by • It must be independent from those implicated in the the Commission for Racial Equality was specifically events32 focusing on Feltham YOI and the circumstances in which • It must be capable of leading to a determination of Mr Mubarek was murdered. Faced with a situation in whether State agents are liable for the death and/or which there had been no public investigation of the acts the identification of those responsible and, if and/or omissions of Prison Service personnel in which appropriate, their punishment they had been able meaningfully to participate, the family • It must be prompt of Mr Mubarek pressed the Home Secretary to hold a • It must contain a sufficient element of public scrutiny public inquiry. and must involve the next of kin in the investigative procedure to the extent necessary to protect their At first instance, the Home Secretary’s refusal to accede legitimate interests. to this request was quashed by Hooper J who held that public scrutiny and the involvement of the next of kin The language of the Court’s judgment indicates these were separate requirements of the Article 2 investigative criteria are essential requirements of any effective duty and that accordingly an independent public investigation where an arguable violation of Article 2 had investigation must be held to satisfy the requirements of the been made out. Indeed in Jordan violations were found Convention. But the Home Secretary’s appeal was allowed because of a failure to disclose witness statements and call with the Court of Appeal holding that public scrutiny and various members of the security forces to give live next of kin involvement are not separate, compulsory evidence. Likewise, in Edwards, the Court found a violation requirements of Article 2 and that the investigative duty of Article 2 because of a failure to call prison officers who had already been discharged on the facts of the case. were on duty on the night Christopher Edwards was killed by his cellmate and because the family were not allowed to The judgment in Amin recognises that the coroner is attend the entire inquiry. the key public authority responsible for fulfilling the adjectival obligation of the State to carry out an effective R (Amin and Middleton) v Secretary of State for the Home investigation into a possible violation of the right to life. Department,33 followed the Strasbourg jurisprudence; It also agrees that this obligation is not limited to fatal however, the Court of Appeal seems to have diluted the shootings or to deaths that necessarily involve the direct apparently clear Strasbourg requirements, holding that the responsibility of agents of the state. It recognises the so- investigative duty under Article 2 could not be defined by called Jordan criteria as constituting the clear position of strict rules and that it was up to the domestic courts to the Strasbourg authorities and that ordinarily an inquest decide what is sensibly required to support and vindicate would comply with the requirements of this Convention rights on a case-by-case basis.The Amin case jurisprudence, including in the provision of appropriate arose from the vicious murder of a young Asian prisoner, verdicts. However, at paragraph 61, the Court Zahid Mubarek, in Feltham Young Offenders Institute by emphasises that his notoriously violent, racist cellmate. Though the cellmate was successfully prosecuted for murder in the “… the task of our courts is to develop a domestic criminal courts, no inquest had subsequently take place in jurisprudence of fundamental rights, drawing on the which the culpability of the Prison Service for failing to Strasbourg cases of which by s2 HRA we are enjoined to protect the deceased’s right to life might be examined. The take account, but by which we are not bound. .... the Director General of the Prison Service had promptly nature and scope of an adjectival duty.... must especially be admitted that the Service had been at fault in a private fashioned by the judgment of the domestic courts as to letter to the deceased’s family, and an internal Prison what in their jurisdiction is sensibly required to support Service inquiry had also taken place whose report had and vindicate substantive Convention rights.”

32 The failure of inquiries to call ‘independent’ witnesses in relation to medical treatment in custody was recognised in R (Wright and Bennett) v SSHD [2002] HRLR 1 and N (a child) v HM Coroner for Liverpool [2001] EWHC Admin 922 33 [2002] 3 WLR 505.

15 On this basis, the Court at paragraph 62 noted There could not be a better indication than the European Court’s decision to apply the Jordan criteria unequivocally “... this part of the case cannot be satisfactorily resolved by to a clear-cut case of negligence in the Edwards case, of the a process of reasoning which sticks like glue to the fact that the Court considers these criteria to be absolutely Strasbourg texts...... What is required will vary with the germane to every State’s obligations under Article 2. circumstances..... [The Court then contrasts cases of credible allegations of murder or manslaughter against the 5.Verdicts state, with alleged negligence.] The means of their fulfilment [the interlocking aims of the obligation to The minimum requirement identified in Jordan, that the investigate] cannot be reduced to a catechism of rules. inquiry must “establish the cause of death or [where What is required is a flexible approach, responsive to the relevant] the person or persons responsible” is of critical dictates of the facts case by case.” importance to any family attending an inquest.35 Wherever possible it is important to the bereaved that the inquiry It is submitted that this approach is fairly at odds with should come to a coherent and clear conclusion as to what House of Lords and Court of Appeal authorities that have happened. In Northern Ireland there was no facility to indicated the ill-advised path of departing from clear and bring back any type of unlawful killing verdict (see Jordan). recent Strasbourg authority given the likelihood that it will In England and Wales, there are unlawful killing and be overturned in Europe.34 The fact that the judgment neglect verdicts. However, rule 42 has been interpreted as indicates that ordinarily inquests will be subject to the prohibiting bringing back a negligence/lack of care Jordan criteria mitigates some of its potentially adverse verdict, because the rule states that “no verdict shall be consequences (it is to be remembered that the litigation framed in such as way as to appear to determine any concerned the decision whether to hold some form of question of civil liability”. In R v HM Coroner for North public investigation in the wake of criminal trial and an Humberside ex p Jamieson36 the test for ‘neglect’ was set at an admission by the Prison Service that it had failed to protect extremely high level: Zahid Mubarek’s right to life). However, it is respectfully submitted that there is a critical flaw in the approach, “Neglect in this context means a gross failure to provide because it fails to distinguish between the mandatory terms adequate nourishment or liquid, or provide or procure of the Jordan safeguards (i.e. Jordan paras 102 to 109) and the basic medical attention or shelter or warmth for someone procedural flexibility that is afforded to member states in in a dependent position (because of youth, age, illness or providing such safeguards (i.e Jordan para 105 and 143). incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose Liberty considers that the right to an independent, physical condition is such as to show that he obviously impartial, prompt, effective and public hearing, in which a needs it may amount to neglect. So it may be if it is the bereaved family is ensured preferential involvement, must dependent person's mental condition which obviously calls be accorded in all situations where acts or omissions by for medical attention (as it would, for example, if a mental state agents may have contributed to a death.The European nurse observed that a patient had a propensity to swallow Court has indicated on a number of occasions, that while razor blades and failed to report this propensity to a doctor, the procedure by which the due process entitlements are in a case where the patient had no intention to cause delivered is a matter for the member states, the entitlements himself injury but did thereafter swallow razor blades with themselves are mandatory.Any attempt to deviate from the fatal results). In both cases the crucial consideration will be so-called Jordan criteria indicates a retrogressive step in this what the dependent person’s condition, whether physical jurisdiction and is a bad example to other countries, who or mental, appeared to be”. for various political and economic reasons will be all to keen to follow suit - especially when death occurs because Since Jamieson, certain High Court judgments have of the negligence of the State as opposed to fatal shootings. specifically questioned whether there is a meaningful

34 R v Secretary of State for the Environment ex parte Alconbury [2001] 2 WLR 1389 per Lord Slynn at para. 26. R (Anderson) v SSHD [2002] 2 WLR 1143, per Simon Brown LJ at paras. 65- 66 and Buxton LJ at paras. 87- 93 35 Jordan v UK 4th May 2001, paragraph 107.The principle was affirmed in relation to Article 3 in Z v United Kingdom 10 BHRC 384, paragraph 109 36 [1995] QB 1

16 distinction between the test for neglect and the test for independently for all to see” (Amin and Middleton para 62), gross negligence manslaughter.37 Indirectly other but be prevented from reaching a conclusion that in effect judgments have adopted a more liberal approach, including those who were responsible for the death had acted within the Jamieson definition of neglect matters which are negligently. more akin to negligence. A finding of lack of care/negligence or some such In R (Amin and Middleton) v SSHD [2002] 3 WLR 505 verdict on the facts of Amin and Middleton could have had the Court of Appeal held that in a case where: the effect of bringing home to the relevant authority and to the individual armed officers the need for the Article 2 • a coroner knows that it is the inquest which is in principle of absolute necessity to be observed at all times. practice the way the state is to fulfil the adjectival Moreover, the orthodox Jamieson meaning of neglect obligation under Article 2 of the ECHR and means that a jury is incapable of applying a sufficiently • a finding of neglect by the jury at the inquest could sensitive and calibrated approach to the concept of the serve to reduce the risk of repetition of the State’s obligation to protect the right to life. circumstances giving rise to the death being inquired into 6. Conclusion Rule 42 of the Coroner’s Rules 1984 can and should be construed as allowing such a finding, providing that no The modern history of coronial law, since statutory individual is named therein. codification in the 19th century Coroners Acts, has principally been about trying to find a system of inquiry While it was thought that such an approach would capable of dealing with the tensions of a complex industrial normally be in keeping with the Jamieson approach, it was urban society. The main political tensions in the 19th also emphasised that the dicta in that case could not century involved dangerous factories. The principal frustrate the obligation of the coroner to carry out an tensions in the late 20th century/early 21st century involve effective inquiry, including the provision of adequate deaths in custody,although other key areas of concern have conclusions concerning the systemic faults of the State.39 In included major urban disasters, environmental disasters, reaching this conclusion, the Court drew a critical deaths within a context of domestic violence and others. distinction between individual acts of negligence and systemic failings (para 87-89). While the current promises of the Government to reform the inquest system must be partly prompted by the Again, it is submitted that this reasoning is at odds with run of cases that the British Government has lost in the approach of the Strasbourg courts.A substantive breach Strasbourg (and now in the domestic courts) in relation to of Article 2 will arise where there is evidence that the Articles 2 and 3, there has also been a profound change of authorities knew or ought to have known of a real and outlook in both political and judicial circles to the immediate risk of death and the authorities failed to take treatment of families in relation to controversial deaths. measures within the scope of its powers, which judged Beneath the short-term changes in political outlook, it is reasonably, might have been expected to avoid the risk: important to appreciate that the broader reasons for the Osman v UK 29 EHRR 245 (para 116); Keenan v UK 10 jurisprudence of the European Court of Human Rights BHRC 319 (para 89).Where an inquest is investigating a and other human rights jurisdictions concern the need to death resulting from the negligent failure of State agents to create workable safeguards for individuals in the face of protect the right to life, the rationale for allowing a more increasing State power in the modern world. It is not relaxed approach to the concept of neglect is essential. It entirely coincidence that the change of view in relation to seems extraordinary that an inquest would be bound to coroners’ inquests has taken place at precisely the same engage in an inquiry of the “utmost rigour, conducted time that the blanket policy prohibitions on suing the

37 R (Dawson and Others) v HM Coroner for East Riding and Kingston Upon Hull [2001] EWHC Admin 352 per Jackson J at paragraph 71 and R (Middleton) v HM Coroner for Liverpool and SSHD, 14th December 2001, per Stanley Burnton at paragraph 36 38 R v HM Coroner for Wiltshire ex p Clegg 520 JP 521; R v HM Coroner for Swansea and Gower ex p Chief Constable of Wales (1999) 164 JP 191; R v HM Coroner for Coventry ex p Chief Constable of Staffordshire Police (2000) 164 JP 665, 675-676; R (Scott) v HM Coroner for Inner West London [2001] EWHC Admin 105, paragraphs 14-15. 39 R (Middleton and Amin) v SSHD [2002] 3 WLR 505, paragraphs 86-93

17 police and social services for negligence have been declarations, injunctions and actions for negligence…This overturned.40 is not the task of Parliament.The courts must do this. Of all the great tasks that lie ahead, this is the greatest. Properly The need to find proper procedures for protecting the exercised the new powers of the executive lead to the rights of individuals against the vagaries of modern society Welfare State: but abused they lead to a totalitarian State. was recognised by Lord Denning as long ago as 1949 in his None such must ever be allowed in this country.” Hamlyn Lectures,“Freedom Under the Law”: Although the Human Rights Act would enable the “No one can suppose that the executive will never be Courts to re-write the Coroners Rules on a case-by-case guilty of the sins that are common to all of us.You may be basis, the creation of a measured and Convention- sure that they will sometimes do things which they ought compatible system by the executive would be a far not to do: and will not do things that they ought to do. But preferable means of adapting the 19th century coronial if and when wrongs are thereby suffered by any of us, what system to contemporary requirements. Dostoyevsky is the remedy? Our procedure for securing our personal argued that the measure of civilisation in a society was the freedom is efficient, but our procedure for preventing the way it treated its prisoners.The Liberty Project on Deaths abuse of power is not. Just as the pick and the shovel is no of Custody has found the system – with regard to police longer suitable for the winning of coal, so also procedures and prison custody - in the United Kingdom to fall short of mandamus, certiorari, and actions on the case are not of the mark.The following text seeks to set out a blueprint suitable for the winning of freedoms in the new age.They for change in the investigation of death, the inquest and must be replaced by new and up to date machinery, by other remedies.

40 Osman v UK [1999] 29 EHRR 245; Barrett v Enfield BC [1999] 3 WLR 79; Phelps v Hillingdon BC [2000] 3 WLR 776; Kent v Griffiths (No.3) [2000] 2 WLR 1158

18 3. INVESTIGATION

1. Introduction responsibility to investigate and secure the scene. Each force has a Senior Scenes of Crimes Officer. The Any investigation into a death in custody needs to be Complaints and Discipline Department should contact the compliant with domestic law, natural justice and the PCA.3 obligations of Article 2 of the European Convention on Human Rights.This chapter evaluates whether the current Thereafter, the force in which the incident occurred investigation processes are able to fulfil both the needs of should appoint a Senior Investigating Officer (SIO).4 It is the relatives of the deceased, the rights of those responsible part of the duties of this officer to commence a preliminary for the death and the requirements of Article 2. investigation ensuring the preservation of the scene, exhibits and witness evidence, as well as the initial notes of This chapter evaluates the current procedure. It looks at the officers involved.5 This officer will also obtain witness the police investigation supervised by the Police statements from the officers involved. Again, there is no Complaints Authority (PCA); the composition and powers specific statutory guideline on how to obtain such a of the future Independent Police Complaints Commission statement in cases of custody deaths. But the ACPO (IPCC); the investigation powers of the coroner; and the guideline states: role of the pathologist. It outlines the existing rules, summarises what happens in practice and ends with some ‘…in order to avoid any additional pressure in addition to recommendations for change. that already experienced, the officers involved in the incident should not be retained on duty solely for the 2. Current procedure – the police purpose of a formal interview. However, where the information is clearly insufficient to allow a proper 2.1 The rules after a death has occurred investigation of the incident, it may nevertheless be When a person has died in custody it is common necessary to interview the officers directly concerned practice for a doctor to be called and asked to confirm more urgently. Any such interview should be conducted death. The doctor, or paramedics, will examine the body under any relevant statutory provision and subject to and, usually by the use of a flat line heart trace, will confirm medical advice’. the fact of death. There is no statutory regulation in place prescribing The relevant provisions include the Police and Criminal what should be done after a person has died in custody. Evidence Act 1984 Codes of Practice, Code C.6 According to ACPO guidelines, after a death in custody, the Senior Police Officer1 must secure the scene and According to sections 71 and 72 of the Police Act 1996 contact a coroner.2 This Senior Officer should then call out a member of the Police Complaints Authority may then be the Scenes of Crime Officers (SOCOs) who have the sole contacted.7 There is nothing mandatory about section 71.

1 A senior member of the police; this officer is often also referred to as the scene manager. 2 For more detail, see Association of Chief Police Officers, Investigations and Remedies, Chapter 6, at 2.14. 3 Changes to the role of the PCA are taking place: this will be discussed under subsection 2.2 and will focus on the practice of the planned IPCC. 4 Sometimes this officer is also referred to as the Initial Investigating Officer – IIO. 5 See also:Association of Chief Police Officers, Manual of Guidance of Police Use of Firearms, section 6-20. 6 Prepared by the Home Office, came into force on January 1, 1986; a second, revised edition came into force on April 1, 1991, the latest edition came into force on April 10, 1995; for more detail, see Zander, The Police & Criminal Evidence Act 1984, at pages 173 and 453-486. 7 The PCA will be replaced by the IPCC in April 2004. Until then, the PCA remains the institution in charge. For more analysis of the IPCC, see section 2.4. Section 71. - (1) The appropriate authority may refer to the Authority any matter to which this section applies, if it appears to the appropriate authority that the matter ought to be referred by reason- (a) of its gravity, or (b) of exceptional circumstances. (2) This section applies to any matter which- (a) appears to the appropriate authority to indicate that a member of a police force may have committed a criminal offence or behaved in a manner which would justify disciplinary proceedings, and (b) is not the subject of a complaint. Supervision of investigations by Authority. Section 72. - (1) The Authority shall supervise the investigation of- (a) any complaint alleging that the conduct of a member of a police force resulted in the death of, or serious injury to, some other person, (b) any other description of complaint specified for the purposes of this section in regulations made by the Secretary of State, and (c) any complaint which is not within paragraph (a) or (b), and any matter referred to the Authority under section 71, if the Authority determine that it is desirable in the public interest that they should do so. continued on next page

19 It is entirely within the discretion of the police service as 2.2 Practice to whether or not they refer a death in custody. However, in practice, invariably they do decide that a death in Due to the lack of statutory regulation prescribing what custody fits within section 71.8 According to section should be done after a death has occurred, procedures and 72(1)(a) of the Police Act 1996 the PCA may then guidelines differ from police force to police force. supervise the investigation after a person has died in Nevertheless, according to ACPO certain elements should custody. Here too, the PCA has discretion to decide be a fundamental part of the investigation: whether or not to supervise9 (although under section 72(1)(a), it must supervise if a complaint is made). • Management of the scene Nevertheless, investigations of death in custody are in • The commencement of the investigative stage practice supervised. • The immediate management of the officers involved in the incident The PCA member, as a part of the supervision of the • Collection of exhibits police investigation, has to approve the person chosen as • Welfare considerations the investigating officer.The PCA has the power to impose • Media requirements regarding the investigating officer,10 but there is no guidance on how the PCA member should assess It is general practice that the management of the scene whether or not the appointment of the investigating officer is the responsibility of the Scenes of Crime Unit.While it is satisfactory.The Senior Investigating Officer must then is the Senior Officer who must secure the scene, he or she submit a final report on the investigations to the PCA.11 has no authority to undertake any investigation. Scenes of Crime staff based within each police force undertake this. The Home Affairs Committee report on police They then report to the Senior Investigating Officer who complaints and discipline procedures recommends should be on the scene within an hour.13 This period is investigation by officers from a different force in such often referred to as the Golden Hour, given that it is the circumstances.12 There is no legal obligation to appoint an most vital time for collecting evidence. independent investigating force. But in practice, again, an outside force is usually appointed. However, the lack of The scene-of-crime preservation involves sealing off the guidelines on when to appoint an outside force to scene. If this is not done carefully evidence will be investigate is a matter of concern and has resulted in destroyed at this early stage. Scenes of Crimes Investigators considerable disquiet. are specialists in crime scene investigations; they are specifically trained (as are their support staff) and are based There are no statutory provisions or formal guidelines comparatively locally. The loss of time waiting for on who should contact the relatives of the deceased and investigating staff to arrive is thus cut to a minimum and how they are to be dealt with. evidence does not age unnecessarily.These are, under the

7 cont’d (2) Where the Authority have made a determination under subsection (1)(c), they shall notify it to the appropriate authority. (3) Where an investigation is to be supervised by the Authority, they may require- (a) that no appointment is made under section 68(3) or 69(5) unless they have given notice to the appropriate authority that they approve the person whom that authority propose to appoint, or (b) if such an appointment has already been made and the Authority are not satisfied with the person appointed, that- (i) the appropriate authority, as soon as is reasonably practicable, select another member of a police force and notify the Authority that it proposes to appoint him, and (ii) the appointment is not made unless the Authority give notice to the appropriate authority that they approve that person. (4) The Secretary of State shall by regulations authorise the Authority, subject to any restrictions or conditions specified in the regulations, to impose requirements as to a particular investigation additional to any requirements imposed by virtue of subsection (3). (5) A member of a police force shall comply with any requirement imposed on him by virtue of regulations under subsection (4). 8 Many ‘proximate’ deaths are also referred, such as deaths following road traffic accidents. 9 Some investigations of ‘proximate’ deaths (e.g. of a person who is not in custody) may not be supervised. This can be an issue, if the definition of ‘in custody’ is read too narrowly. 10 No appointment shall be made unless the PCA is satisfied with an investigating officer. 11 See section 73(1)(a) of the Police Act. 12 See Home Affairs Committee Report on Police Complaints and Discipline Procedures, January 1998; this is mentioned expressly in the revised PCA guidelines as well as in the PCA’s out-of-hours folder, under B External. 13 Research interview with the police.

20 circumstances, valuable characteristics that must remain a guidelines on how to deal with a death in custody. Some priority for the effectiveness of the investigation. However, forces do consider the involved officers’ evidence as the major criticism of this process is that the same force central to the investigation and aim to obtain the that employs officers involved in the incident also employs statements early.15 these investigating officers. In line with the duty to supervise the investigations, the There is no substantive published research to indicate PCA member should be present at the scene at this crucial that this potential problem materialises in a less robust time. The PCA policy16 is that when the member of the investigation. However many of those lawyers who Authority (usually accompanied by a caseworker) comes subsequently represent the families of the deceased have to the scene, s/he has to supervise the preservation of the raised substantial concerns during this research and have scene,17 secure evidence,18 secure witnesses,19 notify given detailed accounts of what has gone wrong in relevant persons20 and collect the relevant documents.21 individual cases. In addition, the existence of such a potential conflict of interest causes fatal damage to the However, the police will not (nor should they) wait for credibility of and public confidence in such an a PCA person to arrive at the scene before starting the investigation. initial investigation.With one central office for the PCA, the time taken by the member to arrive may be Currently, in England and Wales, the members of the problematic as some evidence may be tainted or lost Police Complaints Authority (PCA) provide supervision of during that time.This may be why,in practice, some forces an investigation. For this to be efficient they should ideally contact the PCA member by telephone and appraise him be contacted immediately and appear on the scene to or her that way.22 Whereas this at least secures immediate supervise at once. Unfortunately, there is only one central liaison, it does not secure effective supervision and does office of the PCA in London for the whole of England and not create the perception of accountability, independence Wales. Even though its members can be contacted around or credibility. the clock, this inevitably creates problems of delay for those areas further away from London. The force will suggest an investigating officer, usually from their own Complaints and Discipline Department, Interviews for the purpose of generating witness but occasionally from a specialist unit if an incident statements are a sensitive issue. The Senior Investigating requiring some special expertise has occurred (for instance Officer needs to balance the interests of the police officers involving the use of firearms). It is the policy of the PCA involved (who may be in shock, injured or upset) and the that the appointment of an external investigating officer risk of evidence being lost or contaminated (for example should be seriously considered, and discussed with the through the possible collaboration of witness statements). force in death in custody cases.23 Nevertheless, as long as The ACPO guidelines allow for the release of the police the PCA is not present at the scene this decision is more officer involved before obtaining a witness statement.14 difficult and may not be based on all the relevant facts.The However, the absence of a specific central recommendation importance of early PCA presence at the scene cannot be has resulted in each individual police force having its own emphasised enough.

14 See earlier subsection 2.1 focusing on the rules after a death has occurred. 15 See Durham Constabulary Policy, Death in Custody – Aide Memoire, at 1), which considers custody staff and the arresting officer as part of the immediate investigation, and thus organises for him/her to be escorted to remain on duty. 16 See the PCA’s out-of-hours folder. 17 Crime scene log, cordons, establishing routes in and out, identifying anything moved and where to, minimising contamination, specialist scene protection - after discussion with the crime scene manager, portable lighting. 18 Securing of pocket books, crime report entries, communication records, tapes and logs, custody records, MISPER records, ambulance identity, hospital name, other emergency service records, intelligence reports, PNC checks, stop slips, FME records, victim’s medical history, other records, pre-transfusion blood, clothing, first aid equipment used, firearms. 19 CCTV,House-to-House, cordons, other prisoners, co-arrested, appeals, media, family, friends; identifying which are significant witnesses. 20 Crime scene manager, photographer, pathologist, PCA, DPS ACPO, territorial ACPO, press bureau, internal investigations superintendent, other specialist, coroner’s officer, on-call local superintendent, homicide assessment team, search team, helicopter/traffic car re scene video. 21 Decision logs, crime scene logs, exhibit books, House-to-House video, briefing sheets (ACPO, PCA, pathologist), etc. 22 See Durham Constabulary Policy, Death in Custody – Aide Memoire, at 8). 23 This is mentioned expressly in the revised PCA guidelines as well as in the PCA out-of-hours folder, under B b.; see also earlier subsection 2.1 on rules after a death has occurred.

21 There are no guidelines on the responsibility for disclosure of documents, although the need for change has dealing with media coverage, however in practice the PCA already been recognised. The Home Office has deals with this aspect. encouraged change by providing voluntary guidelines to Chief Police Officers for pre-inquest disclosure by the The current lack of guidelines on who should contact police:26 the family of the deceased and who should provide support for them suggests that the interests and welfare of Chief Officers are advised, therefore, that there should the families are not protected effectively. In some forces be as great a degree of openness as possible, and that there is a policy to try to ensure that the police at least disclosure of documentary material to interested persons establish initial contact with the family, appoint a family before the inquest hearing should be normal practice … In liaison officer, offer victim support etc.24 This practice, all cases Chief Officers will want to consider whether there though not an ideal solution (the police are rarely going are compelling reasons why certain documents, or parts of to be the appropriate body to inform the family of their documents, may not be disclosed. But there should always loss), clearly demonstrates consideration for the interests of be a presumption in favour of openness. the family. However the frequent criticism of a lack of disclosure to the family and friends by the police during Even though this demonstrates an appreciation of the investigations after a death in custody suggests early importance of openness and transparency, the guidelines contact by the actual investigators, in a sensitive and are voluntary and do not compel the police to disclose careful way, should remain a priority. documents. In practice therefore, cases of deaths in custody are still, all too often, characterised by secrecy and the lack There has until very recently been no duty on the of disclosure.27 police or the PCA to keep the relatives informed nor to provide them with documents as they are discovered or 2.4 Reform produced (in a welcome change, this duty is now set out in section 21 of the Police Reform Act 2002). 2.4.1 An independent police complaints commission

The coroner’s pathologist conducts a post-mortem The PCA is an independent organisation created to examination to establish the cause of death, whilst the supervise the investigation of serious cases of police police officer conducts the investigation. The aim is to misconduct: the problem is that it does not undertake conclude the investigation phase (police and pathologist) investigations into deaths in custody itself. It is now within four months.25 Once this investigation is generally accepted that an independent organisation is completed, the findings are provided as evidence to the needed to undertake the investigation of police coroner and, if appropriate, to the Crown Prosecution misconduct, in order to create public confidence.28 Several Service (CPS).The coroner starts the inquest, however, if reports have highlighted this and stressed the the CPS decides to bring criminal charges, the coroner inappropriateness of the police investigating the police in adjourns the inquest until the criminal process is serious matters. For many years the investigation of police completed. Where the CPS does not bring charges, and complaints has been dogged by poor public confidence.29 the inquest jury returns a verdict suggesting some form of Liberty highlighted the fact that public and complainant liability - such as ‘unlawful killing’- the CPS decision may attitude surveys suggested that more independence is be reviewed. essential if confidence is to increase.30

2.3 Disclosure of documents Such independence must be provided through the formal structure of the new body as well as through its There are no statutory guidelines on the pre-inquest substantive work. It is clear that supervision of police

24 See the Durham Constabulary Policy, Death in Custody – Aide Memoire, at 10). 25 For more detail see Leigh, Johnson, Ingram, Deaths in Police Custody: Learning the Lessons. 26 See Home Office,“Circular Guidance to Chief Police Officers”, 20/1999; updated 2002 27 See for instance the case of Roger Sylvester where the claimant and her family have not had access to a very large proportion of the evidence. 28 For more detail, see Harrison and Cunneen, An independent police complaints commission, Liberty,April 2000. 29 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Report to the United Kingdom on the visit to the United Kingdom and the Isle of Man, 8-17 September 1997, section 48- section 55; see also Sir William MacPherson of Cluny, The Stephen Lawrence Inquiry Report, at p. 333; and also:The Home Affairs Committee, First Report: Police Complaints and Disciplinary Procedures, vol.1, at p. xxvi.

22 officers is not enough, and independent investigation must will not be regarded as the servant or agent of the Crown be introduced in order to enhance confidence in the and may not enjoy any status, privilege or immunity of the system.31 Furthermore, there needs to be greater Crown.39 This is similar to the regulation of the Canadian transparency so that the victims – the family and friends - Special Investigations Unit,40 whose Director cannot be a are empowered to participate. police officer or a former police officer.

Experience in Canada shows that it is possible to move But the Canadian system also prohibits police officers away from the police investigating themselves. In the being appointed as investigators (though former police Province of Ontario, this has been a two-stage process. First officers are not barred). By contrast, under the new system the Office of the Public Complaints Commissioner was for England and Wales, most complaints will still be created in 1981.While the police retained responsibility for investigated by the police themselves.The Act states:41 investigating public complaints, the Commissioner monitored progress by evaluating 30-day interim reports (1) The Commission may appoint such employees, on on the status of the investigations.32 In 1990 the Police such terms and conditions, as appear to it to be Services Act created the Special Investigations Unit,33 an appropriate. independent investigating body aimed at civilian oversight. (2) The Commission may make arrangements with - It conducts investigations into the circumstances of serious (a) the chief officer of police of any police force injuries and deaths that may have resulted from criminal maintained for a police area in England and Wales, offences committed by the police.34 (b) the chief constable of any police force maintained for a police area in Scotland, The following section will analyse the new Independent or Police Complaints Commission (IPCC), now being set up (c) the Chief Constable of the Northern Ireland Police under the Police Reform Act – its composition, its powers, Service, under which members of his force are and whether more disclosure can be expected. engaged on temporary service with the Commission. 2.4.2 Composition of the IPCC (3) The Commission may make such other arrangements for its staffing as it thinks fit. The Independent Police Complaints Commission35 will (4) A member of a police force on temporary service consist of a chairman36 and not less than ten other with the Commission shall be under the direction members.37 The chairman and members of the and control of the Commission. Commission must not have been police officers or have “at (5) The approval of the Secretary of State as to any time been under the direction and control of a chief numbers and to the terms and conditions of staff officer or any person holding an equivalent office in shall be required for the exercise by the Scotland or Northern Ireland.”38 The first chairman of the Commission of its powers under this paragraph. new IPCC, Nick Hardwick, was appointed in December 2002. As highlighted earlier, the high degree of involvement of the police in the investigation of its own cases is a matter As an illustration of its independence, the Commission for concern. But it must be borne in mind that members

30 Harrison and Cunneen, An independent police complaints commission, at p. 5. 31 See Police Federation, at http://www.polfed.org.uk/wherewes.html#polview 32 Consultation Report of the Honourable George W.Adams QC to the Attorney General and Solicitor General Concerning Police Co-operation with the Special Investigations Unit,Toronto, May 14, 1998. 33 Police Services Act, R.S.O. 1990, c. P.15; this followed the Lewis Task Force on Race Relations and Policing, created by the Government after two black men were fatally shot by police in 1988, and chaired by Clare Lewis; for more detail see Report of the Race Relations and Policing Task Force,Toronto: Queen’s Printer, 1989. 34 See section 113 of the Police Services Act. 35 See section 9(1) of the Police Reform Act. 36 Appointed by Her Majesty. 37 Appointed by the Secretary of State. 38 See section 9(3) of the Police Reform Act (the chairman shall also not be appointed if he or she has been a member of the National Criminal Intelligence Service or the National Crime Squad or has been a member of a body of constables). 39 See section 9(5) of the Police Reform Act. 40 See section 113 of the Police Services Act. 41 Schedule 2, para. 6(2) to the Police Reform Act, 2002.

23 of the police have considerable expertise in conducting (1) This paragraph applies where- investigations and as such would provide a valuable (a) a complaint or recordable conduct matter is resource. Thus, a constructive compromise must be found referred to the Commission; and to ensure an acceptable degree of independence and at the (b)the Commission determines that it is necessary for same time provide the highest standard of investigation. the complaint or matter to be investigated. (2) It shall be the duty of the Commission to determine Liberty suggested a model employing a mix of seconded the form which the investigation should take. police officers and non-police investigators – with a ceiling (3) In making a determination under sub-paragraph (2) on the number of police investigators allowed (25%).42 the Commission shall have regard to the following Such staffing of the new Commission, theoretically, would factors- be of some considerable symbolic value regarding (a) the seriousness of the case; and independence and would thus enhance public confidence. (b)the public interest. The Ontario Special Investigations Unit has recruited 50% of its full-time investigators from non-police positions in (4) The only forms which the investigation may take in the law enforcement community.43 accordance with a determination made under this paragraph are- The lack of experience amongst non-police staff is (a) an investigation by the appropriate authority on its addressed through training and by working with more own behalf; experienced staff. The SIU spends 5% of its budget on (b)an investigation by that authority under the training its staff. Investigator training for the SIU consists of supervision of the Commission; an Orientation Programme, monthly Case Debriefs, Unit (c)an investigation by that authority under the Training Sessions, and annual Investigators’ Seminars. management of the Commission; Training is ongoing.44 Investigations for the Unit differ (d)an investigation by the Commission. considerably from police work itself and thus a lack of police experience does not always disadvantage non-police As established, there is a real need for a separate, investigators. independent body to investigate deaths in police custody itself. However, the wording of the Act does not guarantee The Schedule to the Act provides for the secondment of such an independent investigation even in cases of deaths police officers to IPCC staff, with no upper limit to such in police custody. It leaves it to the discretion of the appointments. Even though the Commission may make Commission to determine the form of investigation, which such other arrangements for its staffing as it thinks fit, and can take place without the Commission’s involvement, be appoint such employees as it deems appropriate, Liberty supervised or managed by it, or be undertaken by it takes the view that this leaves too much discretion to be an directly. Liberty believes that it would have been better to effective regulation.The guidelines need to set out a limit specifically require that deaths in police custody should for the number of police officers involved. The symbolic always be investigated by the Commission itself. value of an IPCC that is staffed by non-police must not be underestimated. It is generally understood that such regulation would require additional resources, namely personnel and funding 2.4.3 Powers of the Independent Police Complaints and that in a few cases independent investigation would be Commission unnecessary.46 Nevertheless, this needs to be weighed against the benefit of enhanced efficiency and public In line with Schedule 3 of the Police Reform Act, the confidence.As the Act itself says of the general duty of the IPCC has the duty to decide whether to investigate a Commission, it must “secure that arrangements … are complaint,45 and the power to determine the form of an efficient and effective and contain and manifest an investigation: appropriate degree of independence”.47

42 See the KPMG study for the Home Office on an independent police complaints commission; and Harrison, Cunneen, An Independent Police Complaints Commission, at 2.3 on p. 9. 43 For more detail, see SIU Special Investigations Unit,Annual Report 2001-2002, at p. 20. 44 SIU Special Investigations Unit,Annual Report 2001-2002, at pp. 23-27. 45 Schedule 3 para 25 of the Police Reform Act. Note: it does not have the duty to investigate but the duty to decide whether to investigate. 46 Home Affairs Committee,“First Report, Police Complaints and Disciplinary Procedures”, vol.1, at p. xxvi.

24 Experience in Ontario shows that the actual (2) In any case in which there is an investigation of a investigation of all deaths in custody by an independent complaint in accordance with the provisions of unit is possible. This Unit employs 10 full-time Schedule 3- investigators, several regional investigators as needed, and (a) by the appropriate authority on its own behalf, or eight Forensic Identification Technicians as needed.48 (b)under the supervision of the Commission, Furthermore, this team of investigators not only it shall be the duty of the appropriate authority to provide investigates deaths in police custody but also serious the complainant with all such information as will keep him injuries where the police were involved.49 This may be a properly informed, while the investigation is being carried useful model for the forthcoming IPCC as well, given that out and subsequently, of all the matters mentioned in systemic faults may be revealed and recurrence be subsection (4). prevented more readily. … (4) The matters of which the complainant must be kept As regards the investigation powers of the members of properly informed are- the IPCC, the Act provides that a member shall, for the (a) the progress of the investigation; purposes of carrying out the investigation and all purposes (b)any provisional findings of the person carrying out connected with it, have all those powers and privileges of the investigation; Constable throughout England and Wales and the adjacent (c)whether any report has been submitted under United Kingdom waters.50 Such powers are welcome and paragraph 22 or Schedule 3; essential. (d)the action (if any) that is taken in respect of the matters dealt with in any such report; and Following the frequent criticism of a lack of disclosure (e)the outcome of any such action. to the family and friends during investigations after deaths in custody there will be a new regime for the IPCC, which Thus, the IPCC will have a far greater duty to disclose will be reinforced by regulations and guidance. The than does the Police Complaints Authority. However, the Government has accepted that the restrictions on the Act does allow some exceptions from the duty of disclosure of information by the Police Complaints disclosure. For instance, disclosure of information that is Authority51 have inhibited the PCA in explaining its work relevant to, or may be used in, any actual or prospective and it has set out to relax this restriction.52 The Police criminal proceedings is exempt. Furthermore, the Reform Act (at s20) places a duty on the Commission to Commission does not have to disclose information: keep the complainant (and the relatives of those who have died in police custody) informed: • if it is in the interests of national security; • if it is for the purposes of the prevention or detection (1) In any case in which there is an investigation of a of crime, or the apprehension or prosecution of complaint in accordance with the provisions of offenders; Schedule 3- • if is required on proportionality grounds; or (a) by the Commission, or • if it is otherwise necessary in the public interest.53 (b)under its management, it shall be the duty of the Commission to provide the complainant with all such information as will keep him Thus, this commendable duty could, Liberty believes, be properly informed, while the investigation is being carried curtailed unnecessarily.It would have been better to have a out and subsequently, of all the matters mentioned in stronger duty imposed in such cases and this way ensure subsection (4). more openness, transparency and confidence in the

47 Part 2 section 10(1)(c ) of the Police Reform Act. 48 For more detail see SIU Special Investigations Unit Annual Report 2001-2002, at p. 21. 49 See section 113(5) of the Police Services Act. 50 See Schedule 3, Part 3, clause 19(4)(a) and (b) of the Police Reform Act. 51 See section 80 of the Police Act. 52 See Home Office, Complaints against the Police – A Consultation Paper, May 2000, at Q15, p. 7. 53 clause 20(6)(a) and (b) (I)-(iv).

25 procedures. The consultation on ways to improve the confusion over what precisely is expected of police relationship between the Special Investigations Unit (SIU) officers.58 and the police also emphasised that the investigation must be carried out in a transparent manner to secure public It is therefore vital for the IPCC to be regulated by a confidence. 54 clear set of regulations and guidelines to ensure clarity and consistency from the start. If this is not the case, then any In Ontario it was thus recommended, among other public confidence initially created by the establishment of things, that the written report of the SIU should be made the new body may quickly ebb away. public where no charges are laid. It was also stressed that the Police Services Act should be amended to provide for Finally, the IPCC’s duties remain limited: there is no its release notwithstanding the Freedom of Information obligation to investigate deaths in custody or serious and Protection of Privacy Act.55 Despite these injuries. The mandatory referral of death in custody cases recommendations, in practice the SIU releases only an oral does not automatically result in an investigation by the summary of its report to affected families and officers. IPCC, whose staff still have discretion as to whether it will investigate or supervise an investigation.This appears weak In the Australian state of New South Wales, the coroner when compared to the Canadian practice, where it is reveals all documents to the family. A copy of all the mandatory that all cases of death and serious injury at the material used in the coroner’s investigation is sent to the hands of the police are investigated by the independent family well before the inquest commences.56 body.

2.4.4 Conclusion 2.5 Investigations in prisons and mental health institutions Even though the IPCC is not yet operational, it is important to analyse its provisions in the light of the The investigations following prison deaths and deaths problems of its predecessor and of international under compulsory Mental Health Act detention are experience. The commitment to provide a new characterised by an even greater lack of independence. institutional body governed by new legislation is very Following a death in prison custody, an internal positive. The new body comes with both considerable investigation takes place, led by a senior investigating officer symbolic value and, potentially, full investigating powers. from the Prison Service. Senior investigating officers are However, at the time of writing there was a distinct lack of Governors from establishments other than the one under guidance as to how these powers will be used, in particular investigation. In line with their terms of reference, they for deaths in custody. investigate the facts pertaining to the apparent cause of death, and determine whether a separate investigation Furthermore, it is recommended that the IPCC should under the Code of Discipline is required.59 The death must take on board the 12 years of experience of the Canadian be reported by the Prison Governor to the coroner. Ontario SIU. The review of the SIU has revealed that there are insufficient legal references in the Police Services Deaths of psychiatric patients who are compulsorily Act or in the regulations to the conduct of SIU detained are also investigated internally. It is the investigations.The generality of the statute and its potential management of the hospital that sets up an inquiry.What relationship with the Canadian Charter of Rights and form the inquiry takes depends on the circumstances Freedoms,57 have proven fertile ground for dispute and leading up to the death. If a patient is believed to be a

54 Consultation Report of the Honourable George W.Adams, QC to the Attorney General and Solicitor General Concerning Police Co-operation with the Special Investigations Unit, 14 May 1998, at p. 4. 55 Consultation Report of the Honourable George W.Adams QC to the Attorney General and the Solicitor General Concerning Police Co-operation with the Special Investigations Unit, 14 May 1998, at p. 96, recommendation 16. 56 Research interview with the Deputy Chief Coroner for New South Wales. 57 Part I of the Constitution Act, 1882, being Schedule B of the Canada Act of 1982, c.11. 58 Consultation Report of the Honourable George W.Adams, QC to the Attorney General and Solicitor General Concerning Police Co-operation with the Special Investigations Unit, 14 May 1998, at p. 13 59 For more detail, see Safer Custody Group Report for 2001, Self-inflicted deaths in Prison Service Custody,p.10.

26 victim of a homicide, the police must be informed.60 Since Finally, greater consideration for the family perspective the Mental Health Act 1959, it is not considered necessary entails a need to: that the death of all patients in a mental health institution should be reported to the coroner.61 This matter was fully • ensure the family is informed of the death by an re-considered by the Brodrick Committee in 1971,62 but independent body (e.g. the IPCC or equivalent) resulted in no change on this issue. It is still the case that • ensure the family is provided with support the Mental Health Act Commission should be informed of • ensure the family is informed of the process, their the death of any detained patient.This, however, only partly rights, the findings etc. compensates for the absence of an inquiry by a coroner. This issue is being considered again by the Shipman Above all, the IPCC must have sufficient resources to 63 Inquiry, chaired by Dame Janet Smith. fulfil its mandate. Experience in Ontario has shown, that limited resources inhibit the effective investigation of So lack of independence in the investigation of these deaths in custody, damage relations with other institutions, types of custody death is an issue quite as serious as with restrict the ability to be at the scene promptly, and make deaths in police custody. This examination focuses on the independent body’s performance ineffective. The police custody; however, we hope that the analysis is Ontario SIU, in its early years, had to struggle to secure equally applicable to the procedures following deaths in public confidence as a result of the inadequacy of its prison and under compulsory mental health detention. resources.64 Increased resources resulted in a boost to the SIU’s capabilities and competence – through hiring staff, 2.6 Conclusions putting in place a training programme, and acquiring new equipment to support investigators and forensic What is needed to restore lost public confidence is an technicians. For example, the Unit now has at its disposal effective and transparent system of investigation that shows vans that have been set up as computer-equipped offices in real consideration for the family of the deceased. which investigators can conduct interviews wherever a The early stages of the investigation are crucial. To witness is located.65 The success of the IPCC depends on improve effectiveness, there is a need for: adequate resources: every effort must be made to provide the new institution with a reasonable budget.66 • uniform guidelines and procedures 67 • specifically trained independent investigators 3. Current procedure – the coroners • an investigator from the independent body to be at 3.1 The rules after a death is reported the scene as soon as possible

• mandatory investigation by the IPCC of all deaths The coroner, when informed of the presence of a body and serious injuries at the hands of the police. within his/her area, must consider the circumstances of the death: 68 On transparency, a change of policy is needed to ensure more openness, through compulsory disclosure of evidence (1) The proceedings and evidence at an inquest shall be and other documents before an inquest. directed solely to ascertaining the following matters,

60 See Louis Blom-Cooper,‘Deaths of detained mental patients’, in A. Liebling, Deaths in Custody – caring for people at risk. 61 Compare with sections 20 and 21a of the Lunacy Act 1890, where it was enacted that every such death must be reported. 62 which recommended that the deaths of all compulsorily detained psychiatric patients should be referred to the coroner (at para 12.09). Report of the Committee on Death Certification and Coroners, 22 September 1971, Cmnd. 4810, chaired by Norman Brodrick QC 63 Phase two will look into systemic failures in relation to the patients killed by Dr Shipman. 64 For more detail, see Consultation Report of the Honourable George W.Adams, QC to the Attorney General and Solicitor General Concerning Police Co-operation with the Special Investigations Unit, 14 May 1998, at pp. 82-84. 65 Special Investigations Unit Annual Report, 2000-2001, at p. 10. 66 The SIU for the Province of Ontario in Canada has an annual financial expenditure of just over $(Ca)5 million (this is just over £2 million); 70% of that is spent on investigative services. For more detail, see Special Investigations Unit Annual Report 2000-2001, at p. 26 and Special Investigations Unit Annual Report 2002-2002, at p. 29; it would be useful if the IPCC had access to helicopters. 67 This sub-section only deals with issues regarding the investigation of the coroner; a more detailed examination of the whole inquest system can be found in the next chapter 68 Rule 36 of the Coroners Rules.

27 namely- The coroner’s power in respect of the post-mortem or (a) who the deceased was; special examinations begins and ends with the question of (b)how, when and where the deceased came by his “how” the deceased came by their death. He or she cannot death; authorise examination beyond that as a matter of interest (c)the particulars for the time being required by the nor, for example, as research into an area of public Registration Acts to be registered concerning the importance. The pathologist instructed has to provide the death. coroner with a post-mortem report (for the pathologist’s (2) Neither the coroner nor the jury shall express any remit, see the next subsection).78 The coroner has the opinion on any other matters. power to decide which witnesses to call. If witnesses do not attend, the coroner has the power to order a witness According to the Coroners Act and the Coroners Rules, summons requiring the attendance of a witness and s/he the coroner’s inquest is inquisitorial: its sole purpose is to can enforce this by a fine.79 find the true answer to the questions set out in rule 36.69 According to the Coroners Act, the coroner’s jurisdiction Any disclosure of documents is very much at the arises where there is reasonable cause to suspect that the discretion of the coroner and the legislative framework deceased is a person who has died in prison.70 This does not provide much help. According to the Coroners reference to “prison” would not include an obligation to Rules a coroner shall, on application and on payment of hold an inquest following a death in any other form of the prescribed fee (if any), supply to any person who, in the legal custody.71 The Home Office recommends that opinion of the coroner, is a properly interested person a coroners should hold an inquest on the death of any person copy of any report of the port-mortem examination or in any kind of legal custody, even if the person concerned special examination.80 The same applies to any notes of died in hospital after having been held in such custody.72 evidence, or of any document put in evidence at the Jervis, in line with the Brodrick Report recommendations, inquest (but only after the inquest). points out that it is curious that there should be no obligation to hold an inquest merely because the deceased died in police custody, yet any inquest that is held must be 3.2 Practice a jury inquest.73 Despite the lack of an express obligation, coroners do The coroner has the common law right to possession of assume they have a duty to hold an inquest in all cases of the body.74 The coroner can give authority for the death in custody and do not restrict this duty to deaths in examination or removal75 of the body from the place where prison. As has been established, it is the coroner’s it was found. The coroner alone has the legal power to responsibility to ensure that a fair and balanced account of order an examination of the body but this is often carried the death is presented at the inquest. This means that the out in agreement with the police.76 In line with this the circumstances must be properly investigated (by the coroner has the power to instruct a pathologist.77 Which coroner or the coroner’s officer on behalf of the coroner) pathologist to instruct is at the discretion of the coroner, and that relevant witnesses must be called to the hearing. within the constraints of the Coroners Rules. Thus the coroner is the arbiter as to what evidence will be

69 Dorries, Coroners’ Courts – a guide to law and practice, 7.04, at p. 141. 70 See section 8(1)(c ) of the Coroners Act. 71 For more detail, see Nicoll v Catron (1985) 149 J.P.424, D.C. In this case there is not even a specific duty to report the death to the coroner at all, although the then Home Secretary thought that all the deaths in custody should be reported to the coroner, see House of Commons Official Report, 11 November 1980, col. 151. 72 See Home Office Circular No.35, 1969, and also: cf R v Inner London Coroner ex Linnane [1989],W.L.R.395, D.C. 73 See the Brodrick Report at paras 12-07 and 14-10, which also recommends that there should be both a duty to report a death in police custody and a duty to hold an inquest. 74 R v Bristol Coroner ex parte Kerr [1974] 2 All ER 719: the coroner’s authority over the physical control of the body arises as soon as he decides to hold an inquest and lasts at common law until the inquest itself is determined. 75 See section 22(1) and (2) of the Coroners Act 1988, which make discretionary provisions for a coroner to remove a body for examination. 76 See Jervis, On Coroners’ Law, 14-07, at p. 262; see also rule 6(1)(a ) of the Coroners Rules; see also the earlier subsection. 77 See rule 6(1)(a) of the Coroners Rules which requires the coroner to instruct, whenever practicable, a pathologist with suitable qualifications and experience and who has access to laboratory facilities. 78 See rule 10(1) of the Coroners Rules. 79 See section 10(2) of the Coroners Act. 80 See rule 57(1) of the Coroners Rules.

28 heard before the inquest and he or she alone can regulate has occurred.This confusing mix of roles could undermine the conduct of the proceedings.81 However the public confidence – even though in practice, it is not the investigation and, to some extent, the collection of the coroner who investigates but rather the police who provide evidence is not in the coroner’s control. the coroner with the evidence gathered (if only on the basis of goodwill). In order to investigate the circumstances properly, the coroner needs to be fully informed of the details In France, the inquiry into a death truly combines surrounding the death, especially of the evidence found at investigation and adjudication. There the investigating the scene and during the ‘Golden Hour’. But the coroner magistrate investigates the death and delivers a criminal is dependent on the expertise, efficiency and effectiveness verdict upon completion. This system may not be of the police at the scene and on the chief investigating appropriate for England and Wales because this officer (supervised by the PCA member).81 Clearly, any combination of roles would conflict with the adversarial shortcomings in this initial phase will hamper the coroner’s system in our courts. investigation severely. It may be better if the coroner in England and Wales The coroner must become conversant with the retains the judicial role and the fiction of responsibility for inquiries made by the police – including documents the the investigation is ended.The benefit of such a system is police have acquired and statements they have taken.There illustrated by the Canadian (Ontario) and Australian (New is no express statutory power for the coroner to require the South Wales and Victoria) procedures where the coroners police to co-operate.83 The evidence collected by the obtain the evidence collected by the police. In Australia, police is, as a matter of practice and goodwill, given to the independence is secured through the establishment of a coroner to avoid his or her having to make similar and unit overseeing the police investigation: the ethical parallel investigations.84 So the coroner (or the coroner’s standards department (Victoria) and the police integrity officer) has no trouble obtaining the evidence that has been unit (New South Wales). collected and in practice, the production of necessary documents does not really cause difficulties. The coroner Even though there is a lack of clear guidelines regarding is not, however, in control of the investigation. the disclosure of information, evidence and other documents, some coroners are now seeking to provide Once all the necessary information is to hand, the such documents to the family or other interested parties. coroner will decide which witnesses to call.The coroner Problems occur, mainly due to the lack of clear rules with is under a duty to ensure that a balanced and regard to evidence collected by others, particularly by those representative picture of evidence is available in court.85 outside the remit of the coroner’s investigation. Statements However, the choice of witnesses too – and thus the and documents collected by the police during their coroner’s further investigation – is likely to be based on investigation, and supplied to the coroner, start as police 86 the police’s collection of evidence (particularly if no other property and, it is claimed, remain police property. As agency has investigated). Thus, again, the coroner is such, the coroner is only the custodian of the documents, largely dependent on the expertise, efficiency, and and could not without breach of confidence or trust show effectiveness of the police. them to the applicant. Although any interested person is entitled to examine any witness at an inquest either in Effectively the law gives the coroner a dual role - as the person or by counsel or solicitor,87 this is interpreted as investigator and as the adjudicator after a death in custody applying only to examination of a witness at the inquest

81 For more detail see Dorries, Coroners’ Courts, at p. 118. 82 See section 2 of this chapter, on the current procedure for investigation. 83 In the 1983 case of R v Southwark Coroner ex parte Hicks [1987] 2 All E.R. 140 it was said that the coroner has himself no power to order the production of documents although he may apply to the High Court for a subpoena duces tecum compelling production. Dorries, Coroners’ Courts, argues on p. 123 that this subpoena is an administrative function of the High Court rather than a judicial order made in court, and it is difficult to see why it should be felt this cannot be undertaken by a coroner, indeed, no reason was given for this view in Hicks. 84 See R v H.M. Coroner for Hammersmith ex parte Peach No. 2 85 See Dorries, Coroners’ Courts, at 6.02 and 6.03, p. 118. 86 See R v H.M. Coroner for Hammersmith, ex parte Peach [No.2] 87 See rule 16 of the Coroners Rules.

29 hearing itself. It does not affect the fact that the documents • Clear statutory guidelines regulating the remit of the are still the property of the police, are not within the coroner coroner’s disposition, and cannot be disclosed before the • Coherent and uniform guidelines for all coroners’ inquest.88 courts • Regulations providing the coroner with the powers This situation has been partly resolved by the current to obtain necessary information for the investigation trend towards more – albeit voluntary – pre-inquest (i.e. regulating the relationship between police and disclosure. In preparation for the Roger Sylvester inquest, coroner) a special one-day pre-inquest hearing took place before the • Regulations for pre-inquest disclosure, making coroner to arrange for the disclosure of all documents.89 disclosure obligatory Such hearings are not entirely new, but the trend towards holding pre-inquest hearings in most controversial inquests • Streamlining of the process. should be welcomed. 4. The pathologist Again, however, the Canadian and Australian systems examined highlight a much greater degree of disclosure 4.1 The rules after a death has occurred in these countries.The system in the Province of Ontario ensures the disclosure of the complete coroner’s brief There are no statutory guidelines directing pathologists before the inquest. This does not include the police on what they need to do after a death in custody has report, but much of the police report is covered in the occurred.There is also no structure or central control.92 The brief. Furthermore, the Adams review recommended that profession has recently produced a document, Good Medical the SIU report should be made public where no charges Practice in Pathology, with the aim of providing a code of are laid.90 This recommendation has not been practice by which pathologists will eventually be judged in implemented so far,91 but a follow-up review by George terms of annual appraisal and revalidation.93 But this code Adams towards the end of 2002 was due to revisit this of practice offers no guidelines to forensic pathologists.94 issue. 4.2 Practice Apart from the police report, the coroner does – voluntarily – provide most of the information to interested The pathologist plays a substantial role in the parties. Nevertheless, there are still problems involving lack investigation of the coroner.Although the pathologist may of disclosure.This, once again, can only be overcome if clear sometimes visit the scene of a suspicious death, in the vast statutory guidelines are set up and their implementation is majority of cases the pathologist will see the body of the monitored. The jurisdictions examined in Canada and deceased for the first time in the mortuary.The pathologist Australia do not face this problem because the coroner is entirely reliant on the information gathered by those collects all the material beforehand and this file (apart from who have attended the scene, the coroner’s officer or the the police report in Ontario) is disclosed to the family and local police force, although he should also be given access interested parties at least four weeks before the inquest. to any hospital records in appropriate cases.95

3.3 Conclusions Even though the coroner is in charge of appointing the pathologist, in practice it is the police, or sometimes the Five key improvements are needed to ensure an effective coroner’s officer, who call the pathologist following an investigation through the inquest system: incident. The Metropolitan Police, for example, have a

88 See R v H.M. Coroner for Hammersmith, ex parte Peach [No.2] 89 Friday 25 January 2002 at St Pancras Coroners’ Court.This hearing was in confidence and thus no documents are available. 90 Consultation Report of the Honourable George W.Adams, QC to the Attorney General and Solicitor General Concerning Police Cooperation with the Special Investigations Unit, 14 May 1998, at p. 95-96, recommended that the SIU report should be made public where no charges are laid. 91 See Special Investigations Unit Annual Report, 2001-2002, at p. 10. 92 See Pounder in INQUEST and The Law Society report – Inquests: are they delivering truth and justice?, Seminar, 20th November 2001,The Law Society, London, at 11. 93 The Royal College of Pathologists, Good Medical Practice in Pathology, January 2001. 94 It is addressed to doctors practising chemical pathology, medical microbiology, haematology, histopathology and cytopathology. But a forensic pathologist usually attends after a death in police custody. 95 Dorries, Coroners’ Courts, at 5.10, p. 96.

30 number of pathologists under contract and working on a are usually satisfied with the procedure and results duty rota for call-outs. obtained.This may be because the system is coherent and uniform, there are strict guidelines, and strict quality This is an obvious departure from the regulations of the controls. In Victoria/Australia, the autopsy is carried out Coroners Act by which the coroner has the authority to with the family and the police as observers, able to ask order a post-mortem,96 and the rule according to which questions during the process.101 In these jurisdictions, the someone independent of the police has the right to choose family is sent the coroner’s brief before the inquest, a pathologist.97 98 It is a departure designed to speed up the including the full report by the pathologist. investigation and to secure evidence at an early stage; but it nevertheless deprives the process of an element of In any jurisdiction, the pathologist faces several independence from the police investigation. problems when undertaking the autopsy. Firstly, resuscitation attempts often destroy relevant evidence in In Ontario, this problem is avoided by completely the body.First-aiders and paramedics have to do everything excluding the police after a death in police custody.The to save the victim’s life, but these efforts cause severe bruises coroner in Ontario is a fully-qualified doctor and always and some fractures that may cover up or cause confusion attends the scene after a death in custody.99 The coroner with other injuries obtained separately. Secondly, the reports this case to a group of seniors (coroners and pathologist needs as many witness accounts as possible to lawyers) at the head office and this meeting decides be able to provide definitive conclusions. For instance, whether an autopsy is necessary.An autopsy will generally bruises alone are not sufficient to prove restraint-related be held after a death in custody – undertaken by a death/positional asphyxia. However, if a witness can state pathologist employed by the state’s chief coroner. The with certainty that the victim was lying face-down and police are not involved in the process at all. officers kneeled on his back, then the autopsy in combination with this statement would allow for such a In England and Wales, once the pathologist has been conclusion. contacted s/he should go to the scene or the hospital.100 In practice, it may take a pathologist four hours to arrive.This But in England and Wales, the pathologist will usually should be co-ordinated with the member of the PCA.The not hear about witness accounts until the inquest. Given pathologist then undertakes an investigation at the scene that there is no regulation on the order of witnesses, the and a preliminary investigation of the body. A thorough pathologist may even hear about these statements only after autopsy will follow. In England and Wales there is at least s/he has given evidence. By contrast, in Ontario and the one autopsy following almost every death in custody.This Australian states of Victoria and New South Wales, all puts enormous strain on the system and makes the inquest parties receive the complete set of evidence before the procedure a costly process. inquest. This speeds up the process and provides the pathologist with a full account of the circumstances. The number of autopsies undertaken in Ontario is far lower than in England and Wales.This keeps costs down In contrast to ordinary homicide investigations however, and places less demand on forensic pathologists.The reason there may be more than one pathologist present at a for this is that the coroners in Ontario are qualified custody death autopsy in England and Wales.It has become physicians and do not need medical advice during the more common for the Police Federation to instruct their investigation. Second autopsies are unusual: there is own pathologist and sometimes, the family will do so as sufficient confidence in the system and families and friends well.Thus, there may be at least three pathologists present.

96 See sections 19 and 20 of the Coroners Act. 97 See rule 6 of the Coroners Rules. 98 For more detail see the first section of this chapter. 99 In non-controversial cases the coroner may give instructions over the phone and the body is brought to Toronto for physical examination. However, by definition deaths in custody are always seen as controversial and there will always be a coroner attending at the scene. 100 The body will usually be removed to the hospital and transferred to a mortuary in that hospital. 101 In Melbourne (Victoria,Australia) the police and the family can be present at post-mortem, can observe through a glass window from a seated viewing room and can ask questions through a microphone linked with the pathologist.

31 Upon conclusion of the autopsy, the (lead) pathologist has 5. Conclusion to submit a report. This is usually a very long document that goes to the coroner and the police.The document is Overall the current system is characterised by a lack of written in two versions: report format and statement guidelines and regulation, and a damaging lack of format. The report is for the coroner, the statement may disclosure. Too much depends on the police – and they form the basis for a criminal prosecution or a disciplinary cannot be expected to provide the entire basis for the procedure. These reports may take up to six weeks to investigation into the actions of their colleagues and produce.102 There is always a danger in reporting provide support and welfare services to the family. prematurely without having considered all the relevant facts.103 Full disclosure before the inquest would not only The current system does not contribute to greater provide more transparency but also support the pathologist public confidence. The lack of disclosure, the lack of in their examination. independence, and the lack of promptness do not provide the police with the opportunity to prove they have 4.3 Conclusions undertaken a thorough and effective investigation. At the same time, where the police investigation involves For the pathologist’s investigation to be effective, there is a mistakes there is little opportunity to pinpoint and need for: remedy these mistakes, and learn lessons for the future. Recommendations for change should consider the • Clear guidelines imposition of clear regulations and guidelines, a greater • Existing guidelines to be updated degree of disclosure, improved public scrutiny and • Increased disclosure to ensure transparency independence. The need for greater promptness and • Promptness – including the investigator reaching the independence may in turn require greater scene quicker and the pathologist conducting the decentralisation of the IPCC, so its staff can attend a post-mortem and writing the report quicker. death as soon as possible.

102 The toxicology examination takes considerable time: pathologists would not like to draw conclusions without considering all the relevant facts. 103 See the case of Wayne Douglas, who died in contact with the Metropolitan Police, where the report prematurely concluded natural causes of death.

32 4.PUBLIC SCRUTINY: THE INQUEST SYSTEM

1. Introduction (2) Neither the coroner nor the jury shall express any opinion on any other matters. Even though inquests into custody deaths form only 12% of the coroner’s caseload,1 they will be the main focus No verdict shall be framed in such a way as to appear to of this section. Inquest proceedings are almost unique to determine any question of – the English legal system; they have only now begun to be (a) criminal liability on the part of a named person, or scrutinised more thoroughly by the European Court of (b)civil liability. Human Rights in Strasbourg.2 As Jervis states, the coroner’s court is peculiar in being inquisitorial in nature rather than accusatorial.3 This gives rise to fundamental differences, So the key function of the coroner is to determine both in procedure – compared to ordinary civil and when, where and how the deceased came by their death. criminal courts – and in comparison to other European In cases inquiring into police deaths or prison deaths the 6 and international experiences. It is also characterised by coroner has to sit with a jury. There is no such provision some practical problems, especially from the perspective of for the death of persons detained under the Mental Health 7 the relatives of the deceased, as regards its function, its Act. The inquest, as a fact-finding exercise, involves the structure, its transparency, and its effectiveness.This section examination of witnesses by the coroner and interested describes a typical inquest and analyses the issues that arise. persons. Individuals such as the spouse, parent, child or other relative are likely to be considered an interested

8 2. The inquest system person by the coroner.

The inquest is formally inquisitorial rather than The jury will listen to the evidence and may ask questions.9 The coroner may assist the jury by asking adversarial: technically there are no parties to it, and there questions him or herself.After the evidence has been given are no formal allegations or pleadings.4 In line with this, the no person other than the coroner is entitled to address the Coroners Rules proclaim:5 jury as to the facts of the case.10 Legal representatives will not be given the chance to make a closing statement (1) The proceedings and evidence at an inquest shall be putting forward their view of the case, as would happen in directed solely to ascertaining the following matters, a criminal court. If any person wishes to address the namely- coroner on a point of law,11 this must be done in the (a) who the deceased was; absence of the jury so that they are not influenced by (b)how, when and where the deceased came by his whatever may be said.12 death; (c)the particulars for the time being required by the The coroner sums up the evidence for the jury and Registration Acts to be registered concerning the directs them as to the relevant law.13 Thereafter, the coroner death. sets down for the jury those verdicts s/he considers

1 Home Office Statistical Bulletin, issue 11/98. 2 Jordan v United Kingdom (dealing with the Coroners Act (Northern Ireland) 1959, and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963); McKerr v United Kingdom; Kelly and others v United Kingdom; Shanaghan v United Kingdom. 3 Matthews and Foreman, Jervis on Coroners, p. 186 at 11-01. 4 For more detail, see: Dorries, Coroners’ Courts – a guide to law and practice, p. 137. 5 See sections 36 and 42 of the Coroners Rules. 6 Section 8(3)(a) and (b). Only about 4% of inquests each year are held before a jury, see Dorries, Coroners’ Courts – a guide to law and practice, 8.01. 7 Nevertheless, some patients in a mental hospital are held by order of the court under section 42 of the Mental Health Act, 1983, and that is often considered as a case under section 8(3)(a) of the Coroners Act, thus as a police death. 8 See Rule 20 of the Coroners Rules. 9 But rarely does so and may not even be told that it has the right to do so. For more detail, see later sections. 10 Rule 40 of the Coroners Rules. This is unlike criminal or civil cases where both parties can address the issues of fact in their final submissions. 11 Before s/he sums up to the jury. 12 For more detail, see Dorries, Coroners’ Courts – a guide to law and practice, at 8.24. 13 See rule 41 of the Coroners Rules. For more detail, see Dorries, Coroners’ Courts – a guide to law and practice, chapter 8.

33 available to them as a matter of law and as justified by the The jury retire to consider their verdict, and they will evidence. Some describe the duty of the coroner in this stay in seclusion until such time as they have reached a regard as acting as a filter to avoid injustice.14 There is no verdict.28 The formal record of the inquest, containing the definitive list of verdicts.There is, however, a suggested list verdict, is called the inquisition.29 The form of inquisition which is contained in the notes to the prescribed form of is prescribed by the Coroners Rules and consists of three inquisition set down under the Coroners Rules.15 The parts: the caption, the facts found (the verdict in a strict notes do not form part of the Rules and are not binding.16 sense), and the attestation by the coroner and the jury.30 The so-called rider to a verdict has been abolished,31 and Before reaching a particular verdict, the coroner or jury the coroner cannot pass an opinion on matters outside the must be satisfied on the necessary facts to the required questions of who, when, where, how, although the standard of proof. For a verdict of suicide or unlawful prevention of future fatalities is still included in the remit killing the standard of proof is at the same level set in a of the coroner.32 The coroner, rather than the jury, has the criminal court - beyond reasonable doubt.17 For all other power to report the circumstances of the case to an verdicts the lesser (civil) standard of proof applies - on the appropriate authority with a view to remedial action being balance of probabilities. No verdict may determine any taken.33 This recommendation does not have to be made form of criminal or civil liability, although prior to 1977 it public nor do the ‘parties’ have a right to be consulted was a function of the coroner’s court, in cases involving about it or see it themselves. murder, manslaughter or infanticide, to name the alleged perpetrator. This had the effect of committing the named 3. International soft law standards34 person for trial at the Crown Court.18 Verdicts today include: death by natural causes,19 suicide,20 accidental The relevant ‘soft law’ standards applicable to the area of death,21 misadventure,22 open verdict,23 drugs death,24 lawful inquest systems are contained in the Basic Principles on the killing,25 neglect,26 unlawful killing.27 Use of Force and Firearms by Law Enforcement Officials,35 and

14 See:Woolf MR, in R v HM Coroner for Exeter & East Devon ex parte Palmer, unreported, Court of Appeal, 10 December 1997. 15 See Form 22, of Schedule 4 of the Coroners Rules. 16 R v Poplar Coroner ex p.Thomas, [1993] QB 610. 17 R v Wolverhampton Coroner ex parte McCurbin (1990) 1 WLR 719. 18 This power was specifically abolished by the Criminal Law Act, 1977. 19 There is no statutory definition but it is understood as the normal progression of a natural illness, without any significant element of human intervention, see Dorries, Coroners Courts – a guide to law and practice, at 9.13. 20 Voluntarily doing an act for the purpose of destroying one’s life while one is conscious of what one is doing.There must be evidence that the deceased intended the consequence of his act. See: R v Cardiff Coroner ex parte Thomas (1970) 3 All ER 469. The Government has announced that it is considering abolishing the verdict of suicide because of its connotations.The exact wording of what will take its place has not yet been decided. 21 The unexpected result of a deliberate act, see Jervis, Jervis on Coroners, at paras. 13-24. 22 There remains uncertainty on the definition of misadventure. It is applied by some when a person deliberately undertakes a task which then goes wrong, causing death, see Dorries, Coroners’ Courts – a guide to law and practice, at 9.16; also R v Portsmouth Coroner ex parte Anderson. For statistical purposes, accidental death and misadventure are treated as one. 23 This is an acceptance that the evidence does not fully disclose the means whereby the cause of death arose, for more detail see Form 22 in Schedule 4 to the Coroners Rules 1984. 24 The suggested list includes “dependence on drugs” and “non-dependent abuse of drugs”.There is however, no statutory or recognised definition of these conclusions. 25 The death was the result of an action justified in law, such as self-defence. It is seen to relate to the shooting of an armed person by the police during a robbery or siege to save the life of another. 26 “Neglect” is seen to be more limited than “negligence”. It is taken to mean: a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may also if it is the dependent person’s mental condition which obviously calls for medical attention. For more detail, see: R v HM Coroner for North Humberside ex parte Jamieson [1995] QB 1; (1994) 3 All ER 972 and (1994) 3 WLR 82. 27 This is a very rare conclusion of the court (although lawful killing verdicts are even rarer).The coroner is not allowed to give a verdict that accuses a named person of criminal liability, but he is allowed to return a verdict stating that the deceased was unlawfully killed, without making reference to the culprit. 28 See Dorries, Coroners’ Courts – a guide to law and practice, at 8.25. 29 See Annex. 30 Matthews, Foreman, Jervis on Coroners, 245 at 13-10; see also: Schedule 4, form 22 of the Coroners Rules. 31 See Coroners Amendment Rules 1980. 32 See section 43 of the Coroners Rules. 33 See Rule 43 of the Coroners Rules; the application of this rule varies, see e.g.: the purpose of such a jury inquest is seen to be that lessons are learnt from the circumstances of the death so that in future the risk of injuries to health or safety arising from similar circumstances should be prevented or reduced, see: R v HM Coroner for Western District of East Sussex ex parte Homberg (1994) 158 JP 357. 34 This is taken from CAJ, Response from the Committee on the Administration of Justice (CAJ) to the Consultation Document Issued by the Coroners Review Team, December 2002, pp. 24-26. 35 Adopted on 7 September 1990 by the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

34 the United Principles on the Effective Prevention and delays, the lack of public funding, and the scrutiny of the Investigation of Extra-Legal, Arbitrary and Summary inquest courts. Executions,36 and the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary 4.2 The remit (and the verdict) Executions.37 These standards are not strictly legally binding; however, they do represent an important yardstick by 4.2.1 Rule 42 of the Coroners Rules which a State may judge its adherence to the generally recognised principles applicable in the conduct of an As has been established earlier, the coroner and the jury in their inquisition must only focus on the questions of investigation into a suspicious death. Furthermore, these who the deceased was, and when, where, and how death principles are referred to and given credence by the occurred. As regards the caption, this usually does not European Court of Human Rights in the recent cases of involve any difficulty. However, the section on the facts Jordan,38 McKerr,39 Kelly,40 and Shanaghan.41 found includes paragraph 4, which deals with the conclusions of the jury and the coroner as to death. Note These principles proclaim that an investigation shall be 4 to the prescribed form of inquisition gives a adequate,42 thorough, prompt and impartial.43 The comprehensive list of suggested conclusions.48 The object investigation must be independent,44 and families of the of this list is to standardise conclusions over the whole victims must have access to the legal process.45 One of its country and to make the statistics based on the Annual aims should be to bring the suspected perpetrator before a Return more reliable by avoiding as far as possible any competent court established by law.46 The investigation overlap or gaps between the different conclusions.49 ‘Self- should lead to more than mere ‘findings’ but should also neglect’ or ‘neglect’ may be used as a qualification or as a include recommendations.47 The Report must be published free-standing conclusion if the circumstances warrant.50 and the government must formulate a response to it. This latter conclusion seems to be in conflict with rule 4. Issues arising in practice 42 of the Coroners Rules, which forbids any verdict that appears to be determining a question of civil or criminal 4.1 Introduction liability. However, the courts have established that the concept of ‘lack of care’ has nothing to do with the concept The following sub-section will examine the remit of the of civil negligence, and therefore cannot, and does not, coroner, the structure of the courts, issues of disclosure, indicate a breach of duty of anyone.51 Thus,‘lack of care’ is

36 Adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65. 37 United Nations Manual on the Effective Prevention and Investigation of Extra-legal,Arbitrary and Summary Executions, U.N. Doc. ST/CSDHA/12. The manual provides model methods of investigation, purposes, and procedures of an inquiry and processing of the evidence (chapter III, 16); requires that all investigations be characterised by competence, thoroughness, promptness, and impartiality (chapter III, 16), and requires that the scope of the inquiry, and the terms of reference should be framed neutrally to avoid suggesting a predetermined outcomes, (chapter III, 18). In cases involving an allegation of government involvement, the Minnesota Protocol recommends the establishment of a commission of inquiry (chapter III, 21,22). Such commissions require extensive publicity, public hearings, and the involvement of the families of the victims (chapter III, 21). 38 Paragraphs 87-92. 39 Paragraph 144. 40 Paragraph 121. 41 Application No. 37715/97, Judgment of 4 May 2001. 42 See principle 22 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials: Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control. 43 UN Factsheet 11; see also UN Report of the Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, UN Doc. E/CN.4/1988/22. 44 Principle 11: the inquiry must be independent and not governed by interests of any agency whose actions are the subject of the scrutiny. 45 Principle 16, not only must family have access to all evidence, they must also be able to present their own. Representation should be afforded to the family of the victim, see Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, U.N. Doc. E/CN.4/1988/22. 46 Principle 10, 47 Principle 17 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal,Arbitrary and Summary Executions. 48 This is only a suggested list and not compulsory because the notes do not form part of the Coroners Rules, see: R v Turnbull, ex p. Kenyon, March 15, 1984 D.C. (unreported). 49 R v South Glamorgan Coroner, ex p BP Chemicals Ltd (1987) 151 J.P.799, D.C. 50 The notes to the prescribed form of inquisition recommend that “self-neglect” and “lack of care” be used as a qualification rather than as a separate conclusion. However, these notes to the inquisition have no legal force and it has in recent years been held that the conclusions can be standing on their own, see: R v Surrey Coroner, ex p. Campbell [1982] Q.B. 661 D.C.; R v Southwark Coroner, ex p. Hicks [1987] 1 W.L.R.1624, D.C.; R v Birmingham Coroner, ex p. Home Secretary (1990) 155 J.P.107, D.C.; R v East Berkshire Coroner, ex p. Buckley (1992) 157 J.P.425, D.C. 51 R v Southwark Coroner, ex p. Hicks [1987] 1 W.L.R.1624, D.C; R v East Berkshire Coroner, ex p. Buckley (1992) 157 J.P.425, D.C.

35 meant to relate to the physical or mental condition of the how the deceased died will be in conflict with rule 42 of deceased,52 in the circumstances immediately surrounding the Coroners Rules. It ruled that such a conflict between the death.53 In line with this, Jervis suggests that should the rule 42 and the statutory duty to inquire “how” must evidence support the possible conclusion of ‘lack of care’, always be resolved in favour of the statutory duty to inquire or another cause aggravated by it, the jury should be whatever the consequence may be.56 directed by the coroner: However, even though this may make sense in legal (i) that lack of care refers to “care” in the narrow, jargon, it is difficult for the family of the deceased or the physical sense of the word, and has nothing to do public to understand, how a verdict of unlawful killing,57 for with negligence or breach of any duty; instance, does not apportion any blame or criminal liability. (ii) that lack of care must be found in the circumstances Furthermore, it is difficult for the family to understand immediately surrounding the death, and not in what the difference between the coronial ‘lack of care’ and general arrangements or more remote events; the civil ‘negligence’ is. Irrespective of the legal niceties, the (iii) that for the conclusion to be appropriate some other key issues for the family are to find out the truth (the stated person had at least the opportunity of rendering care purpose of the inquest system) and, where appropriate, to which would have been effective to prevent the see the prosecution of those responsible for the death. death, i.e. there must be a clear causal connection Often, these aims conflict. The family will also want an between the lack of care and the cause of death; acknowledgement of fault or responsibility where (iv) that the conclusion should be something (usually appropriate.They will want this in their own particular case, natural causes) aggravated by lack of care where there but they will also want to ensure that justice is seen to be is an underlying condition that makes the person done and that lessons are learnt so that other deaths can be dependent on medication or sustenance from others, avoided in the future.58 In practice, families often think that but that if there is no such underlying condition it the inquest raised more questions than it answered,59 and should be lack of care standing alone. 54 that the remit of the inquest is too narrow,being concerned only with the medical cause of death: the real issues of Nevertheless, the court acknowledged that there is an concern to the family are often not explored.60 obvious danger that such a verdict will conflict or appear to conflict with rule 42 of the Coroners Rules. In order to The privilege against self-incrimination has been resolve this conflict the court suggested that the verdict described as one of the “basic freedoms secured by English should be careful to refrain from stating that the death was law”61 It includes the right not to answer questions in civil aggravated by the lack of care of any particular person or litigation62 and in an inquest.63 persons and merely state it was aggravated by lack of care. Thus, no finding that any person owed a duty of care “The right not to incriminate oneself, in particular, towards the deceased is made, a breach of which would presupposes that the prosecution in a criminal case seek to render that person liable for civil or criminal negligence.55 prove their case without resort to evidence obtained The court also acknowledged that there is an obvious through methods of coercion or oppression in defiance of danger that the overall duty of the coroner in finding out the will of the ‘person charged’.64

52 R v Birmingham Coroner, ex p. Home Secretary (1990) 155 J.P.107, D.C 53 R v East Berkshire Coroner, ex p. Buckley (1992) 157 J.P.425, D.C.; R v North Humberside and Scunthorpe Coroner, ex p. Jamieson. 54 Matthews, Foreman, Jervis on Coroners, 255 at 13-38. 55 R v Surrey Coroner, ex p. Campbell [1982] Q.B. 661, 676; R v Walthamstow Coroner, ex p. Rubenstein [1982] Crim.L.R. 509; Matthews, Foreman, Jervis on Coroners, 256 at 13-39. 56 R v Surrey Coroner, ex p. Campbell [1982] Q.B. 661, 676; Re Adam Bithell (1986) 150 J.P.273, followed in ex p. Jamieson. 57 Matthews, Foreman, Jervis on Coroners, 342 at 13-401 explains that the verdict of unlawful killing does not even name the person unlawfully killed either. 58 INQUEST, Submission to UN Committee for the Elimination of Racial Discrimination,August 2000. 59 See Inquest Law, issue 1. 60 See Coles, Ombudsman: Severin complaint ‘fully justified’, Inquest Law, issue 2, at p. 1. 61 In Re Arrows Ltd (No4) [1995] 2 AC 75 62 Section 14(1) of Civil Evidence Act 1968 63 Rule 22(1), Coroners Rules, 1984, SI 552 64 Serves v France (1997) 28 EHRR 265, para 47. See also Saunders v UK (1996) 23 EHRR 313

36 The privilege can be protected by ensuring that the The inquest should not be the committal stage of any court or other body with a power to force the answer to future criminal prosecution if the inquest is to be effective questions loses any sanction it may have when the answers in its aim to reveal information on the death. will incriminate the speaker. This has been the English way of protecting the right. The European Convention on There is no legal reason why new verdicts cannot be Human Rights does not necessarily protect the individual given by juries, as the commonly known verdicts are only from being required to answer questions where this is in examples and have no statutory basis.68 In fact, in line with the public interest, but it takes the alternative approach of recent developments under the Human Rights Act, preventing the subsequent use of the answers in a criminal wherever an arguable breach of Articles 2 and/or 3 is trial.65 However the Convention will sometimes find a revealed a more flexible approach will have to be adopted violation of Article 6 at the earlier stage when coercion is to the framing of verdicts. This may ensure that the being applied solely for the purpose of obtaining evidence proceedings are more ‘effective’, i.e. capable of leading to for a subsequent conviction.66 This approach has not been the identification of those responsible for the breach of followed by the British courts since the Human Rights Act these articles. Furthermore, it would seem obvious that came into force. In fact the British courts are seemingly at wider and deeper public inquiries into deaths in custody odds with the position now taken in Strasbourg on the are likely to lead to an improvement in standards and protection against self-incrimination more generally.67 avoidance of further deaths in the future.69

There are good reasons for arguing that the public 4.2.2 Rule 43 of the Coroners Rules interest in obtaining the truth at an inquest is sufficient justification for forcing answers to questions by using the As noted earlier, the rider to a verdict has been sanction of contempt of court. This is arguably justified abolished. However, in line with rule 43 of the Coroners even where the answers will force the witness to admit that Rules, the coroner can report the circumstances of a case they have committed offences - provided that these to the appropriate authority, to ensure that lessons are confessions cannot subsequently be used in evidence in any learnt so that such deaths in future can be prevented or criminal trial. This approach would at least support the reduced.70 Given that there are no specific guidelines for rights of the family of the deceased (Article 2) and the fair the implementation of this rule, practices vary widely trial rights of a witness who might in future face among coroners. There is no record kept of rule 43 prosecution (Article 6). recommendations made around the country by different coroners or any monitoring or check of whether these are However, as is generally understood, the inquest is not implemented. INQUEST reports that it has often seen an adversarial process. There would clearly be a conflict coroners make rule 43 recommendations similar or between the inquest and a possible prosecution. It may be identical to ones made by previous coroners at different justifiable for an employee of the state to be forced to be a inquests. This suggests that lessons are clearly not being witness if this was in the public interest. But there should learnt. There are some inquests where this rule has been be a prohibition on the use of any evidence in subsequent made use of and reports have been made to the criminal proceedings which was given under such authorities.71 However, more often the family and friends compulsion. have been the real motor for accountability.72 There have

65 Saunders v UK 66 Funke v France [1993] 16 EHRR 297 67 Compare Brown v Stott [2001] 2 WLR 817 with Heaney and McGuiness v Ireland [2001] Crim LR 481 68 Offer, Cockburn, Inquest into the death of Christopher Walker, Inquest Law issue 4, at p. 7. 69 Owen, Friedman, Inquests and the Human Rights Act - the State’s obligation to investigate deaths in custody: a summary of recent developments in the case law, Inquest Law issue 5, at p. 3. 70 R v HM Coroner for Western District of East Sussex ex parte Homberg [1994] 158 JP 357. 71 See: Khan,Thomas, Inquest into the death of Nathan Delahunty, Inquest Law, issue 2; see also the recommendations made after the Sultan Khan inquest in St Albans which completed on 14 March 2002: the coroner Edward Gordon Thomas concluded that he would write to the Chief Constable making recommendations regarding restraint techniques. 72 In the case of Nathan Delahunty, it was mainly due to representations by the family that the inquest was re-opened under a different coroner - who then uncovered inconsistencies and made recommendations. It must be borne in mind that the coroner’s exercise of rule 43 in the Sultan Khan case was made after the High Court rejected an application on the grounds of the limited scope of verdicts left to the jury by the coroner. In the Alton Manning case, the coroner himself referred the matter to the CPS under rule 28 of the Coroners Rules, see: Stop Press: Family granted leave for judicial review of decision not to prosecute over death of black prisoner, Inquest, issue 3.

37 consistently been calls by families who have been involved after the recommendations have been sent to the parties in inquests for standard directions and guidelines to assist involved there will be a letter requesting information on coroners.73 what has been done to implement the recommendations. The Office of the Chief Coroner uses the media to exert Mechanisms for reporting circumstances and ensuring pressure on the parties to implement what the jury has that lessons are learnt in future have been used far more in suggested. Australia (NSW) and Canada (Ontario). There, recommendations are an integral part of the inquest and These experiences demonstrate that the verdict and their implementation is strictly monitored. In Australia, the recommendations can be – and should be – made more use chief coroner or deputy chief coroner closes the inquest of: they could become a powerful tool for change.74 These with recommendations. These recommendations are foreign approaches can offer guidance on how this could detailed documents, which are available to anyone and are be done, with the practice in Canada being closer to the tabled in Parliament, thus exerting pressure for change. current institutional framework in England and Wales. Recommendations are also published regularly by the Attorney General’s Office. 4.3 The structure of the courts - the jury

The fact that recommendations by coroners are on the Once the coroner has decided that s/he is ready to political agenda ensures that they are monitored and proceed with a case to be heard with a jury,s/he is obliged Parliament is under pressure to act on deaths in custody. to issue a warrant75 summoning between seven and eleven Furthermore, the electronic database which is currently persons to attend as jurors and inquire into the death. being set up under the auspices of the Monash University Normally, the coroner’s officer will obtain a list from the in Melbourne will provide a compilation of all verdicts and Crown Court of those persons who are next due to be recommendations, to be available to every coroner in the summoned for jury service there.76 State.This will primarily provide standardisation, but it will also be a mechanism to monitor implementation. It may However, given that the jurors are chosen in the same also make the government liable to civil prosecution if a manner as the Crown Court jurors, the same practical previous recommendation has not been implemented and problems are encountered. There has been considerable a death in custody has occurred again under the same criticism recently of the fact that too many people are able circumstances. to avoid jury service either because of exemptions or because they have been able to persuade the court to In Ontario, the inquest jury gives the verdict and makes excuse them.77 The consequence is that too many so-called recommendations designed to prevent future recurrence. professional and middle-class people are absent from juries, The jury is not led by the coroner.These recommendations and juries are unrepresentative as a result. Studies have also are also published centrally. The verdict and revealed significant under-representation of women and recommendations are sent to the parties involved in the ethnic minorities on juries. Proposals to reduce specific case. Furthermore, the recommendations are also substantially the numbers of people able to avoid jury sent to a list of those who wish to receive them in an effort service are likely to be agreed by Parliament in 2003.78 to keep their procedures up-to-date and to learn from the mistakes of others.The Chief Coroner’s Office in Toronto There is a real possibility of racial bias among a non- has a designated department that monitors the representative jury. Given that deaths in custody are implementation of the recommendations made. A year characterised by a considerably higher number of non-

73 See Divisional Court quashes Brett Hay Inquisition – R v HM Coroner for Lincolnshire (Lincoln District) ex parte Mrs Annette Hay, in Inquest Law issue 2; also: Cragg, Review: Practice Notes for Coroners – adopted by the Coroner’s Society and released February 1999, in Inquest Law issue 3. 74 Although the Brodrick report argues to the contrary, at paras 16.51-16.56. 75 See section 8(2), Form 3 of Schedule 4 of the Coroners Rules. 76 Dorries, Coroners’ Courts – a guide to law and practice, at 8-13. 77 See Sir Robin Auld, Review of the Criminal Courts in England and Wales, September 1991. 78 Baldwin, McConville, Jury Trials, at 98; Zander, Cases and Materials on the English Legal System, at 415-417; Lloyd-Bostock,Thomas, Decline of the ‘Little Parliament: Juries and Jury Reform in England and Wales, in Vidmar,World Jury Systems, at 69; See also Criminal Justice Bill, published November 2002.

38 white suspects/prisoners, this is cause for concern.79 the complex issues of law,especially the difference between the criminal and the civil standard of proof, and the According to section 8(2) of the Coroners Rules difference between neglect and negligence. However, too between seven and eleven jurors must be assembled and much power in the hands of the coroner, especially in the sworn in. As outlined in the previous section, it is the role light of the lack of guidelines for coroners, can jeopardise of the jury to listen to the evidence, ask appropriate objectivity. 84 questions if they wish and then reach a verdict based upon the evidence. The coroner will assist the jury by asking Some people have questioned the benefits of a jury.It is questions of the witnesses. The coroner will control the argued that the jury puts a considerable financial strain on proceedings, sum up the evidence for the jury and direct the inquest system. Furthermore, given the dominant role them as to the relevant law.80 of the coroner in the direction on the verdict and in the discretion and setting of recommendations, the In practice, this division of labour puts a lot more power responsibility of the jury is minimal. However, the jury can into the hands of the coroner than the jury. Usually the ensure more openness in the inquest system, a regular form coroner will explain the purpose of the inquest to the of public scrutiny, and a potential security against bias. It jurors, outline their role and explain what they have to can ensure that the law is a law of the people and not of a decide.The jury is allowed to ask questions only once the professional elite. It would not be in the interest of the coroner and any properly interested persons have done so, inquest system if the general trend of eroding jury trial and no-one is allowed to address the jury as to the facts of resulted in similar reforms to the coronial system. the case.81 It is the coroner who sums up the evidence for the jury,82 and it is the coroner who sets down the verdicts The experience in Ontario may offer a compromise for the jury to consider. Lastly, the coroner will direct the between the abolition and retention of the jury. In jury on the standard of proof. The jury will have to Ontario, every inquest has a jury.Furthermore, the jury has understand the difference between the criminal standard of considerably more power. It can ask questions and cross- proof – beyond reasonable doubt, and the civil standard of examine witnesses. It delivers the verdict without needing proof – on the balance of probabilities. too much help from the coroner and it regularly makes recommendations that are published, filed, and monitored The problem with this division of power is that the jury rigorously. Overall, the jury is a far more independent part can be led towards a certain verdict. Summing up by judges of the inquest proceedings and has more scope to has been criticised because of the ‘pre-digestion’ of the contribute to the case. This practice in Ontario has not evidence - designed in order to save the jury considering resulted in any substantial problems with the jury ‘irrelevant’ information. Even where judges intend to limit struggling with complex issues of the law or differences in themselves to marshalling the facts in order to provide an civil and criminal standards of proof. agenda for the jury to follow, there is still the danger that subtle and unrecorded body language can influence the 4.4 Disclosure (transparency)85 jury.83 In any adversarial setting in the UK, the parties to the By limiting even the kind of verdicts to be considered proceedings have disclosure duties that are regulated by the by the jury, the coroner is clearly able to lead the jury into court – and the court can adjudicate where one party a specific direction. Admittedly the jury is not trained in considers that another party to the litigation has failed in

79 Johnson, Black Innocence and the White Jury, 83 Michigan Law Review, at 1625; Sander v UK case 34129/96, judgment of the European Court of Human Rights, 9 May 2000. 80 Dorries, Coroners’ Courts – a guide to law and practice, at 8-17. 81 Rule 40 of the Coroners Rules. 82 Rule 41 of the Coroners Rules. 83 Wochover, Should Judges Sum up on the Facts?, (1989) Crim.L.R., at 784; Derbyshire, What Can the English Legal System Learn From Jury Research published up to 2001,p.38. 84 See for instance R v HM Coroner for Swansea and Gower ex parte Tristram (CO/1432/98), where the coroner failed to direct the jury on causation and therefore the verdict could not stand.The court held that public interest requires that a death in custody should be fully and properly investigated where there may be neglect by the authorities, therefore a fresh inquest should be held; see: Offer, Cockburn, Divisional Court sets out level of fault for Neglect verdicts, in Inquest Law, issue 4, at p. 3. 85 Special thanks must go to Daniel Machover, of Hickman and Rose, for his valuable contribution to this subsection.

39 their duty to provide adequate disclosure. Thus, in civil handed to the coroner by the police, such as witness litigation, rules as to ‘standard disclosure’ of documents statements, is the property of the police. This practice has relevant to the case have developed, to ensure that parties created suspicion among the family members of the to litigation are not disadvantaged by lack of access to deceased. There have been prolonged battles for more relevant documents. Part of the rationale for these rules is, transparency over a number of years.89 of course, to ensure that the parties and subsequently the courts see (and can evaluate the evidential weight and In recent years, the common law duty of coroners to relevance of) documents to enable justice to be provide advance disclosure (to meet their duty ‘to conduct administered fairly between the parties to litigation. An the inquest in a fair manner’) has developed. This was set adjunct to these disclosure duties is the right to apply to out by Mr Justice Sullivan in his judgment of 2 March the court for orders for specific disclosure and for those 2001 in the case of R (on the application of Bentley) v who are not party to the litigation to provide disclosure HM Coroner District of Avon:90 where they hold relevant material which the court requires to enable justice to be fairly administered. 86 62. …Whilst it is true that an inquest is an inquisitorial, and not an adversarial procedure, the Rules clearly However, the above rules do not apply to the envisage that persons falling within rule 20(2) inquisitorial process of inquests. There are in law no [interested parties] have a role to play in the parties, as such, and no ‘issues’ to be litigated. Further, investigation.They are entitled to examine witnesses, coroners do not have any obvious statutory powers to subject to the coroner's right to disallow irrelevant or order the interested parties (or non-parties) to provide pre- improper questions. inquest disclosure to each other (or the coroner). Documentary evidence received in evidence at inquests is 63. The [interested party’s] request for advance disclosure disclosed to interested parties under rule 37 of the was, on the face of it, a perfectly reasonable one. Coroners Rules 1984, but not in advance of the Certainly, no reason has been advanced by the proceedings. Indeed, there is no general duty under the Coroner as to why it should have been refused.The rules for coroners to give advance disclosure to interested fact that the Rules do not require advance disclosure parties of documents held by the coroner. is not a sufficient answer.There is an overriding obligation to conduct the inquest in a fair manner. New South Wales (Australia) and Ontario (Canada) The requirements of natural justice, or fairness, are both have a duty to provide full disclosure at least four not immutable.What was considered a fair procedure weeks before an inquest commences. In Ontario, the police 20 years ago may well be regarded as unfair by today's documents cannot be disclosed because, as in England and standards. By way of example, the view that fairness Wales,it is argued that these documents are the property of very often requires the giving of reasons for a the police. Nevertheless, essential parts of the police report decision has been steadily gaining ground over recent are included in the coroner’s brief, which is disclosed to the years. family. This is more open than the current practice in England and Wales. In practice it has become increasingly 64. The Coroner had a discretion to permit advance common in England and Wales to disclose post-mortem disclosure of, for example, the post-mortem report reports before the inquest. However with regard to other and the toxicological results. He had to exercise that documentation, such as witness statements and police discretion fairly, with a view to furthering the reports, this has not been the case.87 The courts have purpose of the inquest: …bearing in mind the established that no interested person can require the claimant's entitlement to participate in the coroners to produce documents that have been disclosed to investigation under rule 20. It is difficult to see how him in confidence.88 It is also argued that the evidence the claimant could effectively exercise his rights

86 Non-party disclosure, Civil Procedure Rules, Rule 31.17. 87 Dorries, Coroners’ Courts – a guide to law and practice, p. 126 at 6.13. 88 R v Hammersmith Coroner ex parte Peach [1980] 2 WLR 496, 502-505; R v Southwark Coroner ex parte Hicks [1987] 2 All ER 140. 89 For more detail, see the struggle to obtain documents in the case of Roger Sylvester, and the pre-inquest hearing by St Pancras coroners on disclosure (25 January 2002). 90 [2001] EWHC ADMIN 170

40 under rule 20 if he was kept in complete ignorance falling within rule 20 have a role to play in the of the most basic facts until the commencement of procedure.The requirements of fairness should reflect the inquest. that role. It may well mean that in some cases there is less need for advance disclosure, or that advance 65. The proposition that a person will not be able to disclosure need not be so extensive. But it does not participate in proceedings in an effective way in the follow that there is no need, in the interests of absence of advanced disclosure is increasingly fairness, for any advance disclosure, particularly if the recognised: see, for example, the changes made by the Coroner intends to rely on documentary evidence Civil Procedure Rules in ordinary civil litigation, the alone. provisions of the most recent Town and Country … Planning Inquiry Procedure Rules as an example of the way in which disclosure is dealt with in the field 72. In the present case, the claimant's request was of Administrative Tribunals and Inquiries, and the supported by reasons which have not been gainsaid provisions for greatly increased disclosure in criminal by any explanation from the Coroner, whether proceedings. before, during or after the inquest. In the circumstances, I think it proper to draw the inference 66. In R v Criminal Injuries Compensation Board, ex parte that there was no good reason for refusing the Leatherland and others (unreported, transcript dated claimant's request: see the authorities discussed in 2nd July 2000),Turner J said this of the Board's long paragraph 9-056 of De Smith Woolf & Jowells: Judicial standing policy of refusing to disclose to the Review of Administrative Action.There was unfairness claimants in advance of the hearing witness because the refusal of any advance disclosure (even of statements made by the police and available to the the post-mortem report) meant that the claimant Board: would inevitably be disadvantaged in seeking to participate in the inquest as he was entitled to do “Any practice which leads to the withholding of material under rule 20. until the day of any judicial or quasi-judicial hearing is calculated to be to the significant disadvantage of the Family members can usually obtain access to relevant party from whom they have been withheld ... The documents and items that existed before someone's death argument that any injustice can be cured by the grant of (e.g. their medical records, records held by state agencies, an adjournment is nothing to the point.An adjournment the deceased's private documents and belongings etc.). may, or may not be granted, and even if granted will However, as Mr Justice Sullivan and others have involve a represented appellant in extra costs and delay recognised, to participate meaningfully at the inquest, before final resolution of his appeal ... When the families need advance disclosure of the post-mortem straightforward step can be taken of making available to reports and the results of tests carried out after death, and a party to the appeal material which, it is conceded, he copies of all the statements obtained from witnesses as part will be entitled to receive in any event, it makes no sense of internal investigations (e.g. by NHS Trusts or the Prison at all to say that he must wait and take his chance with Service) and police inquiries into the death. obtaining an adjournment of his appeal from the Panel.” Lawyers acting for bereaved families have not had too much difficulty in obtaining post-mortem reports in 67. Under the Rules, if documentary evidence is advance under Rule 57(1) of the Coroners Rules 1984. proposed to be admitted at an inquest, persons falling However, historically,bereaved families did encounter legal within rule 20(2) will become entitled to see a copy and practical problems in obtaining custody records and by virtue of rule 37(3(d).Without advance disclosure forms completed under internal procedures, as well as the they may be placed at a significant disadvantage. In internal investigations of state bodies. my judgment, the need for advance disclosure is not answered by the proposition that an inquest is an Since about 1997 these classes of documents have been inquisitorial procedure. As mentioned above, persons more freely available to bereaved families in advance of

41 inquests. The Prison Service and other agencies now HM Coroner at Hammersmith, ex parte Peach,94 the Divisional regularly provide voluntary pre-inquest disclosure to Court rejected a submission that denial of witness bereaved families well in advance of the hearing. statement in advance of an inquest was a breach of natural justice: 95 Difficult legal and practical problems continue to arise in relation to two areas. Firstly, the ownership of witness “It is important, I think, to stress that, as far as I know, statements (and other documents) provided to the coroner there never has been a case in which natural justice was by the police for the purposes of being received in invoked through the denial of documents except when the evidence at the inquest.91 Secondly,the powers (and duties) person to whom the documents had been denied was a of the coroner to disclose these documents to the person against whom some charge was being made. It is 'interested parties', notwithstanding the judgment of Mr elementary that, if a charge is being made against a person, Justice Sullivan in the Bentley case.92 he must be given a fair chance of meeting it. That often means he must be given documents necessary for the The relevance of 'ownership' becomes clearer when one purpose. But there is no charge here being made against appreciates that the coroner does not have his or her own Mr Peach, the applicant, and to my mind, try as he will, he investigation team. Rather, the coroner's officer will usually fails to get himself in through any of these doors.” liaise on behalf of the coroner with the local police, who will gather the evidence following the death.93 If the evidence is gathered as part of a criminal investigation then On appeal the challenge to the refusal to provide the coroner will have very little input into how or what witness statements in advance of the inquest was not evidence is collected. If there is no criminal investigation, pursued, so the Court of Appeal did not have to consider the coroner might direct the police as to who s/he wants whether natural justice might require prior disclosure. In R to have interviewed and the evidence s/he is seeking to v HM Coroner for Lincoln, ex parte Hay,96 complaint had been facilitate the inquiry into the death in question. In either made of failure to disclose statements taken by the police, case, the statements remain 'the property' of (i.e. owned by) and a witness list. The court in that case concluded: the police force that has collected them. “In our judgment the decision of this court in ex p A further, rather curious, twist to this question of Peach on the non-disclosure of statements taken by the ownership arises in cases where a death in police custody police still represents authority which this court should is, for the sake of transparency and to bring about a follow.” semblance of independence, carried out by officers from another police force (under the supervision of the Police This outcome becomes particularly contentious where Complaints Authority). Here, despite the fact that officers the death in question occurred in police custody. By the from an outside force have gathered the statements, the late 1990s, the Home Office recognised that it had to force under investigation owns them. This is because the address this problem, not least because bereaved families force under investigation has to finance the work of the were naturally aggrieved at learning of key evidence about police officers from the outside force. the death of their loved ones for the first time at the inquest itself, despite the fact that the police and coroner The documents that bereaved families most want to see had known of this evidence months (and sometimes years) before an inquest are therefore statements that are owned in advance of the hearing.This sense of grievance was most by the police force that investigated the death.The coroner acute in cases where families only realised at the inquest has no power, as such, to disclose those statements. In R v itself that (a) certain lines of inquiry had not been followed

91 Machover, Inquest into the death of Glenn Howard, in Inquest Law, issue 4, p. 4 states that the Metropolitan Police were particularly obstructive in the run up to the inquest.There had been a considerable delay to disclosure and the police continued to withhold disciplinary records and all internal documentation. 92 Op. Cit. 93 For more detail, see earlier subsection. 94 [1980] QB 211 95 ibid, Lord Widgery CJ at page 219. 96 19 February 1999.

42 up, and/or (b) had they known what was in the statements “public interest” prevents him or her from doing so.101 The they could have prepared for the inquest differently, e.g. principle is: 102 focused on relevant issues for their questions of the witnesses or gone about gathering other relevant evidence “…courts have and are entitled to exercise a power and themselves. duty to hold a balance between the public interest, as expressed by a minister, to withhold certain documents or The response of the Home Office was to establish a other evidence, and the public interest in ensuring the working group that produced a voluntary code of proper administration of justice.” disclosure in 1999.97 Under the circular, police forces are encouraged to provide disclosure ‘in any case not less than The scope of this immunity is understood to include 28 days before the date of the inquest proceedings’.98 non-disclosure of information relating to national However, bereaved families in these cases continue to security,103 or the formation of government policy at high experience practical problems, particularly in cases level,104 and documents arising from police disciplinary involving large-scale disclosure where proper preparation proceedings.105 106 Nevertheless, this “public interest of the inquest requires much earlier access to these immunity” is subject to increasing challenge and it cannot documents. be used, for instance, to prevent disclosure in respect of witness statements obtained during an investigation into The absence of a clear legal duty is demonstrated by the the death of a demonstrator alleged to have been struck by difficulty securing pre-inquest disclosure in the Glenn a police officer.107 Howard case.99 Despite the HO Circular, relevant information was withheld. A stronger, statutory obligation In practice, concern has been voiced that the disclosure would lead to standardised practices and would create more of investigating officers’ notes and police officers’ pocket confidence in the system. It is argued that there is a conflict books would jeopardise the quality of investigation, since between the need for early disclosure and the rights of the the police would refrain from adding comments, police officers who may be subject to prosecution or interpretations and recommendations for improvement.108 disciplinary action.100 It is also suggested that disclosure of The PCA, in its guidelines on disclosure, advises in cases some documents will allow witnesses to alter their where investigation is concerned with potential criminal evidence and may make it more difficult to prosecute or liability that all the material obtained must be considered discipline police officers or others responsible for the confidential. The principle is that documentary death. However, whilst these possibilities cannot be ruled information, witness evidence and answers given to out completely, there is little evidence that this has questions during interview have been supplied in happened frequently.There are already sufficient controls confidence.109 However, the Home Office is taking a to protect against police officers and witnesses who are slightly wider approach to this. It states that it will very willing to change their stories. rarely happen that the disclosure of certain material will have an impact on possible subsequent proceedings, It is also possible for a witness to refuse to answer whether criminal, civil or disciplinary.And where this does questions or produce documents on the grounds that the happen, it should be discussed with the Crown Prosecution

97 Home Office Circular 20/1999. 98 Para 17 of the Circular. 99 Machover, Inquest into the death of Glenn Howard, in Inquest Law, issue 4, p. 4 states that the Metropolitan Police were particularly obstructive in the run- up to the inquest.There had been a considerable delay to disclosure and the police continued to withhold disciplinary records and all internal documentation. 100 HO Circular 20/1999: Guidance to the Police on Pre-Inquest Disclosure: Key Issues Emerging from the Review. 101 See Matthews, Foreman, Jervis on coroners, p. 234 at 12-142. 102 Conway v Rimmer [1968] A.C. 910, 952, per Lord Reid. 103 Asiatic Petroleum Co. Ltd.V Anglo-Persian Oil Co. Ltd. [1916] 1 K.B. 822, C.A.; Ducan Campbell Laird & Co. Ltd [1942] A.C. 624, H.L. 104 Burmah Oil Co. Ltd. v Bank of England [1980] A.C. 1090, H.L.; Air Canada v Secretary of State for Trade (No.2) [1083] 2 A.C. 394, H.L. 105 Makanjuola v Metropolitan Police Commissioner [1992] 3 All E.R. 617, C.A. 106 For more detail, see Matthews, Foreman, Jervis on Coroners, p. 235 at 12-143. 107 Peach v Metropolitan Police Commissioner [1986] Q.B. 1064, C.A.; Cf Neilson v Laugharne [1981] Q.B. 736, C.A. 108 Guidance to the Police on Pre-Inquest Disclosure, Deaths in Police Custody, at para. 11. 109 Police Complaints Authority, Disclosure during supervised investigations in cases of grave public or family concern, at para. 4.4.

43 Service.The public interest would only justify withholding stems from the fact that these inquiries are stretched over of documents where there was a genuine risk (not simply an extended period of time.115 Finding out how someone a remote possibility) that disclosure would have a has died is an essential part of the bereavement process and prejudicial effect.110 However the identity of police and of coming to terms with the death. Families are motivated other informers may need to be protected in order to by a need to establish the truth for their own peace of encourage them to come forward.111 mind, and to prevent others going through the same experience.116 These aims are severely hampered by a slow From the perspective of the family, any form of non- inquest process. Numerous cases demonstrate this. disclosure will raise suspicion, especially when it involves documentation created and held by the police.112 Indeed, it On average, inquest proceedings for death in custody is the experience of many families that investigations are cases start about 1–1.5 years after a death in custody.117 This ‘conducted for the convenience of the authorities and do is a long period for a family that has turned to law looking not play any part in revealing the true circumstances’.113 for the truth. Nevertheless, the inquest procedure can be The PCA acknowledges that even though there may be a delayed still further if the inquest is quashed or subject to presumption that evidence and factual information is and judicial review. In such cases, the High Court can order a should remain confidential during the investigation new inquest and can review all actions and decisions of the process, a number of other arguments point in the opposite coroner, not merely the inquisition.118 For instance, if the direction. Disclosure may aid the investigation – given that coroner excludes relevant verdicts from the jury’s it encourages witnesses to co-operate, it increases the trust consideration, this may be subject to review by the High of the family, and it allows for the demonstration of Court. progress.114 Pre-inquest disclosure must therefore balance the rights of the officers involved and the family carefully In the case of Keita Craig, who died on 1 February 2000, so as to achieve a maximum of effectiveness for the inquiry the coroner during the first inquest (13/14 April 2000), did not and a maximum of trust from relatives of the deceased. In allow the jury to consider a verdict incorporating neglect, even the vast majority of cases this will mean virtually complete though he made recommendations that reflected his concern about disclosure as there will be few cases in which disclosure the care and treatment of Keita Craig. On 13 February 2001 the will need to be withheld. High Court quashed the verdict and ordered a new inquest with a fresh jury.The second inquest was held on 3 October 2001.1 4.5 Delays (effectiveness/efficiency) In the case of John Sambells, who died on 29 January 1998, 4.5.1 The inquest proceedings the first inquest was held from 25-27 November 1998. However, the belated disclosure of video evidence to the family led to the There is currently no statutory provision setting judicial review of the first inquest. It was the decision of the coroner deadlines for the final disposal of cases before coroners or not to introduce the video evidence.This led to the quashing by the for how far in advance the (voluntary) disclosure of High Court of the original verdict and a fresh inquest before a documents should take place. Nevertheless, much of the different coroner.The second inquest in that case took place from dissatisfaction of family members involved in inquests 23-25 May 2001.

110 HO Guidance to the Police on Pre-Inquest Disclosure, Deaths in Police Custody, at para. 9(i). 111 Rogers v Home Secretary [1973] A.C. 388, H.L.; D v NSPCC [1978] A.C. 171, H.L.; Continental Reinsurance v Pine Top Insurance [1986] 1. 112 Munyard,“No Prospect of Legal Aid for Inquest Representation”, Inquest Law, issue 1. 113 Shaw, PCA: Relatives ‘too emotional’ for Deaths in Custody Conference, in Inquest Law, issue 1. 114 PCA, Disclosure during supervised investigations in cases of grave public or family concern, at 3.1, p. 9. 115 A list of cases will be examined later in this section. 116 INQUEST, Submission to UN Committee for the Elimination of Racial Discrimination,August 2000, at p. 4. 117 See, for instance, the cases of Rocky Bennett, Glenn Howard, Sultan Khan, and Asif Dad. Rocky Bennett died on 31 October 1998 following the use of restraint in the Norvic clinic, an NHS medium secure unit.The Inquest verdict of accidental death aggravated by neglect was returned on 17 May 2001. Glenn Howard had been subject to section 3 of the Mental Health Act 1983; police officers had been requested by NHS staff to visit his address for the purposes of returning him to hospital under section 18 of the Mental Health Act. On the evening of 10 December 1997 he was reported missing; identified and restrained by police officers near his home, he was taken to Sutton police station and after it appeared that he was not well he was taken to St Helier hospital. Glenn was unconscious and remained on the ventilator until his death on 1 January 1999; the inquest started on 15 May 2000 and the jury returned a verdict of accidental death. Sultan Khan died in January 2000 after a police restraint and the intake of class A drugs. The inquest commenced in November 2001, and a verdict of accidental death was delivered in March 2002. Asif Dad died in January 2001 after police restraint while under the influence of class A drugs.The inquest was held in January 2002 and the verdict of accidental death was delivered in January 2002. 118 For more detail on the quashing of decisions or judicial review, see the next sub-section.

44 Brett Hay died in prison on 8 July 1996 of diabetic In the case of Shiji Lapite the jury also brought back a verdict ketoacidosis (which occurs when the blood sugar level becomes too of unlawful killing, after the inquest heard evidence that he died high). During the inquest the coroner refused to disclose the list of from asphyxia from compression on the neck consistent with the witnesses, and the witness statements. He also refused to allow application of a neckhold. In the light of the jury’s verdict, the cross-examination of the prison doctor and refused to hear evidence coroner referred the case to the CPS, to consider the possibility of from two inmates on the hospital wing.The coroner advised the manslaughter charges against the two officers involved.The CPS jury that a verdict of accidental death was not available. In January decided not to prosecute. 1999 the Divisional Court quashed the inquisition and ordered that a fresh inquest be held by a different coroner. Family members of Richard O’Brien and Shiji Lapite brought a joint application for judicial review, which came 4.5.2 The subsequent prosecution before the Divisional Court on 22 July 1997.As a result, all cases were sent back to the CPS for further consideration. One of the most fundamental problems with the whole The Attorney General appointed Gerald Butler QC to process is the absence of sanctions for those responsible for conduct a judicial inquiry. Subsequently, in the Richard deaths in custody, where applicable. Many families struggle O’Brien case three officers were charged with to obtain good lawyers, proper disclosure and a manslaughter, but all were acquitted in 29 July 1999 – sympathetic coroner but even when the inquest jury has more than five years after the death. made a finding of unlawful killing the difficulties continue. In the case of Alton Manning, the decision by the CPS If the CPS then decides not to prosecute officers involved, not to prosecute any of the prison officers involved in this the families of those who have died at the hands of the restraint-related death was challenged successfully by the State are likely to be justifiably angry and confused – the family in the High Court in May 2000. The Lord Chief death has been found by a ‘court’ to have been unlawfully Justice decided: caused but there is no criminal prosecution.The failure of the CPS to prosecute prison and police officers involved in “Where an inquest [into a death]…culminates in a such deaths, even when there is an inquest verdict of lawful verdict of unlawful killing implicating [an unlawful killing, has done little to reduce levels of identifiable individual] the ordinary expectation would mistrust.119 naturally be that a prosecution would follow”.

There have been several cases where an unlawful killing However, in January 2002 the CPS for the second time verdict did not result in the prosecution of those did not bring criminal charges against any of the prison responsible, e.g. Alton Manning, Richard O’Brien, and officers involved. Shiji Lapite. Christopher Alder, a 37-year-old black man, died on 1 April Alton Manning died after restraint in Blakenhurst prison in 1998 after being arrested and taken to a police station in a police 1995. After the inquest the jury brought forward a verdict of van. Upon arrival, he was found motionless in the van. Video unlawful killing. In February 1999 the CPS announced its evidence showed that he was left unconscious, face down on the decision not to prosecute. floor in the custody suite, until an ambulance arrived. Despite resuscitation attempts, he died. Richard O’Brien was arrested outside a pub in South London on 3 April 1994 after a disturbance broke out. His body In August 1999, the CPS announced the names of five police was apparently lifeless by the time police officers placed him inside officers to be charged. They were suspended awaiting trial. In the van. He was transferred to King’s College Hospital where he August 2000 the jury returned a verdict of unlawful killing was pronounced dead on arrival. After the CPS decided not to following six weeks of evidence. Following the inquest, in June prosecute, the inquest commenced and the jury delivered a verdict 2002, a prosecution on charges of manslaughter and misfeasance of unlawful killing.The coroner referred the case back to the CPS in public office collapsed because of conflicting evidence.The officers for further consideration but this has not resulted in a prosecution. were acquitted.

119 For more detail, see INQUEST, Submission to UN Committee for the Elimination of Racial Discrimination,August 2000.

45 These substantial delays, as well as the discrepancy Commission will fund representation, and some between the findings of the inquest jury and the criminal preparation work, if there are exceptional circumstances. justice system, disrupt the grieving process of the family. Three such exceptional circumstances are: (1) that the case There is a need to shorten the period before the family can involves a significant public interest, (2) that the case find out the truth and can also be provided with a just provides an overwhelming importance to the client, or (3) remedy. Once again, Australia (Victoria) and Canada where the withholding of legal aid would make the (Ontario) may offer some valuable experiences. In Victoria, assertion of a civil claim practically impossible, or where it the coroners, pathologists, police, and a research element would lead to an obvious unfairness of the proceedings in (from Monash University) are housed in one building.This breach of ECHR Article 2.124 practice eliminates the time spent on communications over long distances, liaison through letters, telephone and IT. The criteria for ‘overwhelming importance to the Furthermore, as has been shown earlier, there is only one client’ ensure that only a very small number of cases receive post-mortem at which all parties are present. Of course public funding.125 Significant ‘public interest’, where the such co-location creates difficulties with independence. proceedings have the potential to produce real benefits for However the creation of the IPCC might provide the basis individuals other than the client, is a more frequently for similar models that might preserve independence but relevant ground on which to apply for funding. benefit from speed and efficiency. Nevertheless, despite the codified criteria under which public funding can be applied for, considerable numbers of In Ontario there is again only one post-mortem.There bereaved families in practice fund their own representation are also several more measures geared towards speeding up at inquests into deaths in custody. It is the experience of the process. As mentioned earlier, all the coroners are those representing families126 that those with limited medical doctors and attend the scene personally to collect financial means are too often required to fund their own evidence. They also have the authority and training to involvement in controversial inquests.This is a problem in determine whether, and what kind of post-mortem is need of urgent remedy. appropriate. Every coroner has legal Counsel during the inquest. Lastly, the preceding SIU investigation has a strict 4.7 Judicial Review – scrutiny by the courts time limit during which it has to complete its criminal investigation.The set target is that the SIU closes its case 30 There is no such thing as an appeal against a decision of the days or less after the incident has been reported.120 coroner, either with regard to his/her interlocutory decisions on procedure at the inquest or the verdict itself. 4.6 Funding for legal work at inquest proceedings This means there is no rehearing on the merits.

The absence of automatic non-means-related funding However, decisions are subject, in some cases, to review by for the representation of families at inquests has posed a real the courts. There are two kinds of review by the courts. problem for families of the deceased.121 Since 1999 Firstly, there is the statutory procedure under section 13 of however,122 it has been possible to secure public funding the Coroners Act.127 The exercise of the power to quash under the Access to Justice Act.123 The Legal Services depends on the view of the High Court as to whether it is

120 SIU Special Investigations Unit Annual Report 2001-2002, at p. 16. 121 For more detail, see Thomas, Friedman, Christian, Inquests – a practitioner’s guide, pp. 119- 129. 122 See recommendation 43 of the Macpherson report, of the Stephen Lawrence Inquiry, Cm 4262-I,TSO, 1999. 123 Section 6(8) of the Access to Justice Act, 1999. 124 For more detail see the Lord Chancellor’s guidance; the third ground on which exceptional funding can be granted was added to the revised guidance in November 2001. 125 ‘Overwhelming importance to the client’ is defined as: [A case which has exceptional importance to the client beyond monetary value (if any) of the claim because the case concerns life, liberty or physical safety of the client or his/her family or a roof over their heads], see Thomas, Friedman, Christian, op. cit., p. 125. 126 For more detail, see Thomas, Friedman, Christian, op. cit., at pp. 128-129. 127 See section 13 of the Coroners Act 1988, re-enacting section 6 of the Coroners Act 1887 (as extended by section 19 of the Coroners (Amendment) Act 1926): (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either- (a) that he refuses or neglects to hold an inquest which ought to be held; or (b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interest of justice that another inquest should be held. continued on next page

46 “necessary or desirable in the interests of justice” to hold a a result of judicial review), the usual consequence is that a new inquest.Thus, if the conduct of the inquest creates a real fresh inquest is ordered.139 risk that justice has not been done or has not been seen to be done, the court ought not to allow the inquisition to stand.128 In the cases of Keita Craig and John Sambells, the High Court quashed the inquisition and ordered a new inquest to be The second option for someone dissatisfied with an held before a new coroner and a new jury.In the Keita Craig case, the verdicts open to the jury by the coroner were expanded and in inquest is to apply for judicial review.129 The remedies the case of John Sambells video evidence was disclosed to the jury. available on judicial review includes certiorari,130 In the Sambells case, the family had seen the video after the first mandamus,131 prohibition,132 declaration,133 injunction, and inquest but well before the High Court quashed the first verdict damages.134 An error of law within the coroner’s and ordered a new inquest.Thus the review is a form of check on jurisdiction can be reviewed135 and an inquisition can be the inquest system – and, given the discrepancies in the practices 136 quashed. However, the reviewing court (the High Court) of coroners, a necessary check. does not quash the decision just because the court might have decided it differently, and it does not substitute its However there is no form of control over the power of own decision for that of the coroner. It is a question of coroners to make recommendations for change under rule error in the decision-making process, rather than in the 43, to prevent recurrence in the future. Nor is there any decision itself, which the court is concerned with. If no effective mechanism to promote their adoption in practice: clear error of law can be pointed to, but the decision is such recommendations are neither made public nor are unsatisfactory overall, the applicant should proceed under they collected centrally,indeed they are not even passed on the statutory power to quash, and not by way of judicial to other coroners.There is no mechanism to follow up on review.137 Where the court considers that relief should be these recommendations made, in order to see whether the given, the primary remedy is an order quashing the recommendation has any impact in practice and whether inquisition, with a further order that a fresh inquest be changes have come about.And lastly,there are discrepancies held. The flexibility of judicial review, as compared with as to how coroners make use of rule 43 and due to the lack the statutory remedy discussed before, means that the court of control, there is no means to curtail such discrepancies.140 may grant relief that falls short of quashing the whole What is needed is a strict monitoring of recommendations inquisition and ordering a new inquest (the only remedy by the coroner made under rule 43, similar to that under under section 13 of the Coroners Act).138 However, where the political process in New South Wales or the Chief the inquisition is quashed (under the statutory power or as Coroner’s Office in Ontario.

127 cont’d (2) The High Court may- (a) order an inquest or, as the case may be, another inquest to be held into the death either- (i) by the coroner concerned; or (ii) by the coroner for another district in the same administrative area; (b) order the coroner concerned to pay such costs of and incidental to the application as to the court may appear just; and (c) where an inquest has been held, quash the inquisition on that inquest. (3) In relation to an inquest held under subsection (2)(a)(ii) above, the coroner by whom it is held shall be treated for the purposes of this Act as if he were the coroner for the district of the coroner concerned. (4) … 128 R v Divine, ex parte Walton [1930] 2 K.B. 29, 378, applied in R v South London Coroner, ex parte Thompson,The Times, July 9, 1982, D.C. 129 Since 1977, R.S.C., Ord. 53. 130 A decision of an inferior tribunal is removed into the High Court to be quashed because it is ultra vires or an error of law has been made. 131 An inferior tribunal can be ordered to perform some duty already imposed upon it which it is neglecting to perform. 132 An inferior tribunal can be prevented from exceeding its powers in some way which it is threatening to do. 133 The rights of the parties can be declared. 134 For more detail, see Matthews and Foreman, Jervis on Coroners, 349, at 19-17. 135 Anisminic v Foreign Compensation Commission [1969] 2 A.C. 147, H.L., concerned a statutory tribunal, not a coroner’s court, but is said to be applicable since R. v Surrey Coroner, ex parte Campbell [1982] Q.B. 661; 136 For examples, see Matthews, Foreman, Jervis on Coroners, 351 at 19-21. 137 For more detail, see Matthews, Foreman, Jervis on Coroners, 351 at 19-23. 138 E.g. amending inaccuracies in the inquisition, or deleting a paragraph – the conclusion as to death/ verdict – and remitting the inquisition of the coroner for him to enter such conclusion as he thinks appropriate in the light of the court’s judgment. Everything depends on the individual case. 139 Under the statutory powers this can be done directly: section 13(1)(a), under the judicial review this is done by seeking, in addition to the order of certiorari to quash the first inquisition, an order of mandamus to hold a new inquest. 140 In the inquest into the deaths of two schoolchildren, Hannah Black and Rochelle Cauvet, who drowned on a school trip – held by the Assistant North Yorkshire Coroner (Harrogate Magistrate’s Court, February 2002) – the coroner asked the jury to make recommendations.

47 Another mechanism that might achieve greater public The process is not transparent. It is not easily scrutiny and accountability is the public inquiry – called accessible, the language is complicated and there is no for by many families. This would certainly achieve more person solely responsible for the welfare of the family or public scrutiny, however, there is no procedural or for explaining the process. The inquest lacks power automatic mechanism whereby inquiries can be set up. So because the verdict options are narrowed down by the far, there has only been one public inquiry following a coroner and the unlawful killing verdict does not have death in custody, that ordered by the High Court for the any effect beyond the inquest. Recommendations are Wright case.141 Other families have called for public not a regular component of the inquest, and if they are inquiries but with no success. made, they are not published, and their implementation is not monitored. 5. Conclusion There is a lack of public scrutiny. There is no The present inquest system has, for deaths in custody, overseeing, monitoring body to make coroners more only limited effectiveness. For these controversial cases, it accountable. And the family cannot participate effectively is inefficient and offers an obscure mix of inquisitorial and due to a lack of compulsory pre-inquest disclosure. adversarial elements (perhaps best characterised as an adversarial system working under the guise of an Finally, it lacks a mechanism for monitoring and inquisitorial one). review – not least of coroners’ recommendations resulting from inquests. The role of the coroner is too dominant and the jury is not able to contribute sufficiently to the proceedings.The Recommendations for change should consider a more process is too slow and too costly,and rarely fulfils the aim streamlined system, more participatory rights for the of allowing the family,the authorities or the public to find family, and stricter monitoring of the system. out the truth of what has happened.

141 R (Wright and Bennett) v SSHD [2002] HRLR 1: in a landmark judgment, Jackson J ordered the Home Secretary to establish a public inquiry into Paul Wright’s death in prison. The inquiry heard evidence in December 2001 and reported in 2002.

48 5. OTHER REMEDIES

1. Introduction of the offences specified within section 16(1)(a) of the Coroners Act, an inquest will be opened but will almost The inquest procedure cannot be isolated from the rest inevitably be adjourned until the criminal proceedings are of the legal structure. It is ideally part of a consistent legal concluded, although in theory the hearing can proceed if system and must be seen to be part of such a system.Thus, the Crown Prosecution Service (CPS) agrees.2 The coroner as inquests offer no remedy as such, the rest of the system may also refer a case to the CPS if s/he comes across a ought to be able to provide a satisfactory remedy criminal offence, or if the jury returns a verdict of unlawful (particularly in order to comply with Article 2). killing. However, prosecutions following deaths in custody are rare,3 and there is a general dissatisfaction with the Currently, the system as a whole is failing. So far, not current procedures. The closeness of the relationship one police officer has been convicted of a homicide-related between the police and the CPS is perceived by some as offence following a death in custody despite eight unlawful problematic: the implied accusation is that this closeness can killing verdicts following inquests over the last 12 years.1 If sometimes displace the interests of justice.4 the criminal justice system has not been able to provide a remedy, then the question must be: what alternative 2.2 The decision-making process of the Crown adequate remedies exist? Civil litigation is, as it stands, Prosecution Service rarely sufficient and only one public inquiry into a death in custody has ever been ordered to date. This section will The decision-making process is governed by the Code examine the existing remedies, apart from the inquest, and for Crown Prosecutors,5 as a public declaration of the try to establish what needs to be done to provide a more principles upon which the Crown Prosecution Service satisfactory and consistent legal framework.The subsections exercises its functions.The code states: evaluate the criminal prosecution process, internal disciplinary procedures, civil actions, and public inquiries. 4.1 There are two stages in the decision to prosecute. The first stage is the evidential test. If the case does 2. Criminal prosecution not pass the evidential test, it must not go ahead, no matter how important or serious it may be. If the case 2.1 Introduction does pass the evidential test, Crown Prosecutors must decide if a prosecution is needed in the public It is the intended purpose of the inquest to reveal the truth interest. of what has happened. Relatives of the deceased want to 4.2 The second stage is the public interest.The Crown find out what happened after a death in custody not least so Prosecution Service will only start or continue a that such incidents can be avoided in future. Nevertheless, prosecution when the case has passed both tests. the families also want to see those responsible held liable. This includes both individual and corporate liability, for The Explanatory Memorandum on the Code for Crown example where there are systems failures.The inquest is not Prosecutors states: 6 able to provide that. Whether there should be a criminal prosecution of anyone involved is a decision for the Crown If the evidential test is not satisfied, there must not be a Prosecution Service, usually taken before an inquest has prosecution, no matter how great the public interest may even been opened. If a person has been charged with one seem in having the matter aired in court.

1 For more detail, see Bhatt Murphy Solicitors, INQUEST, Liberty, Response to consultation paper on Attorney General’s Review of the Role and Practices of the CPS in cases of deaths in custody,Appendix, p. 12. NB There have been prosecutions of police surgeons, such as Drs Saha and Salim who were convicted of manslaughter in 1992 of a prisoner named Rawlinson, by prescribing an overdose of drugs. 2 Dorries, Coroners’ Courts – a guide to law and practice, at 7.16. 3 See Bhatt Murphy Solicitors, INQUEST, Liberty, Response to Consultation Paper on Attorney General’s Review of the Role and Practices of the CPS in Cases of Deaths in Custody, June 2002, at p. 12. 4 McConville, Sanders, Leng, The Case for the Prosecution; see also: Smith: CPS for corrupt police,The Independent, July 29, 1997. 5 Issued under section 10 of the Prosecution of Offenders Act 1985. 6 Crown Prosecution Service, revised Explanatory Memorandum to the Code for Crown Prosecutors, June 1996.

49 In practice no police officer has ever been convicted for A pathologist subsequently concluded that the cause of death was any of the homicide offences following a death in custody. postural asphyxia following a struggle against restraint.The jury Since 1990 there have been eight deaths in custody where at the inquest returned a verdict of unlawful killing. inquests have returned unlawful killing verdicts (one of them reduced to misadventure with contributory neglect However, the CPS was of the opinion that the evidence at a second inquest); seven of those verdicts were preceded available, including that presented to the inquest jury, was and followed by CPS decisions not to prosecute anyone on insufficient to launch criminal proceedings and there was no charges relating to homicide or any other offence. The realistic prospect of convicting any person of any criminal offence decisions not to prosecute were successfully challenged by arising from Mr O’Brien’s death. way of judicial review in three of these cases (O’Brien, Lapite and Manning), eventually resulting in a prosecution The Butler inquiry was critical of the decision-making in one case (O’Brien).7 process, finding it involved unnecessary duplication of functions and that no one person took responsibility for There may be several reasons for these stark facts. Firstly, the final decision. As a response to this finding,9 the CPS of course, police officers are employed to protect life and has set up the Casework Directorate, which deals with rarely start out with an intention to take it. Secondly,even cases involving death or serious injury in custody.10 Four if an officer has committed a criminal offence that has led staff are based at the London head office, and one at an to a death the shortcomings in the investigation, flaws in office in York. However, the inquiry also observed that in the decision-making process, and the consequential lack of such cases (and subject to the evidential test),“it is difficult evidence that a crime has been committed can make to imagine circumstances in which it would not be in the successful prosecutions difficult. In previous sections we public interest for there to be a prosecution”. have considered the problems with the investigation process and the gathering of evidence. It is not clear to what extent there has since been any improvement in outcomes in the type of cases highlighted With regard to the decision-making processes of the by the Butler inquiry. There are obvious and usually Crown Prosecution Service, an inquiry was conducted by overwhelming public interest factors listed in the revised Gerald Butler QC (commissioned in 1997 and reporting in Code that would justify a prosecution (particularly, for 1999) into the quality and process of decisions relating to instance, that the possible defendant police officer was in a deaths in police and prison custody in 1994. The inquiry position of authority or trust and the victim by being focused specifically on the cases of Lapite and O’Brien.8 detained was vulnerable).11 However, quite rightly, the public interest test is only considered once the evidential Shiji Lapite died on 16 December 1994 after being stopped test is met. Public interest cannot determine a prosecution in the street by police officers for acting suspiciously.The cause of on its own in the absence of sufficient evidence. death was asphyxia from compression of the neck consistent with the application of a neckhold. The inquest jury returned a It would seem, though, to a lay person (and in particular unanimous verdict of unlawful killing. No criminal charges were to the relatives of the person who has died) that a brought. prosecution would follow an inquest into a death that culminates in a lawful verdict of unlawful killing, Following a fight outside a public house, Richard O’Brien apparently implicating an identifiable individual or was arrested for being drunk and disorderly.There was a struggle individuals. It is difficult for family members to understand and Mr O’Brien was restrained on the ground. He was thereafter how an inquest jury can return a verdict of unlawful killing placed in a police van, still face down, and taken with his wife and and yet prosecution and conviction does not follow. For son to a police station where he was found to have no signs of life. the relatives of Richard O’Brien and Shiji Lapite,12 as well

7 Bhatt Murphy Solicitors, INQUEST, Liberty Response to the Consultation Paper on Attorney General’s Review of the Role and Practices of the CPS, June 2002, see Appendix and 1.3. 8 In the Lapite case the CPS decided not to prosecute. In the O’Brien case three officers did face trial for manslaughter but were acquitted. 9 And the Butler recommendation that cases of death in custody should be dealt with at Central Casework: see Recommendation 1 of the Butler Inquiry, op. cit. 10 For more detail, see Response to the Butler Recommendations, 11 August 1999, document no. 131/99. 11 See Code at para 6.4 (d) and (h). 12 For details on these cases, see above; see also: Coles, Murphy, Police officers acquitted after five year fight for a trial - battle by family of Richard O’Brien has ensured greater public accountability within the CPS, Inquest Law, issue 3,Winter 1999,1 at 5.

50 as those of Oliver Pryce, Leon Patterson,13 Ibrahima Sey, standard of proof for a criminal prosecution are the same, Christopher Alder,14 and, most recently, Alton Manning15 does one not lead to the other? there is a presumption that there must be a fundamental flaw with the system. It is not difficult to understand why There may be several reasons for this. First the those people are likely to want to blame the Crown evidential test that must be met before a prosecution can Prosecution Service for this. Nor is it difficult to be launched.18 Evidence admissible at the inquest may not understand why some people think that part of the solution be admissible at the criminal trial. Secondly, although the is to give the decision to prosecute to another body – one verdict of unlawful killing may have been justified, it might that does not have a close relationship with the police. be that any one of several people might have caused the death, without any proof of exactly which one was Alton Manning died of respiratory impairment resulting in responsible.19 In a criminal trial the prosecution must prove asphyxia following a struggle with prison officers. He was carried beyond reasonable doubt which person committed the from a cell where he was searched for drugs. It was unclear whether offence: otherwise the prosecution will fail. he had been properly restrained or whether he had been in a prone position. In March 1998 the inquest jury returned a verdict of Another obstacle to prosecutions is that it may be that unlawful killing. juries in criminal trials are less likely to convict police officers than others because of the difficult job that they In February 1999 a prosecutor reviewing death in custody do, and that this is in practice taken into account by those cases then reconsidered the earlier decision not to prosecute. It was making the decision in the CPS. In fact the CPS is very decided that there was insufficient evidence for a conviction for clear that this is not a factor that is taken into account. manslaughter. The High Court reviewed and quashed that There is no statistical evidence to support the argument decision and on 17 May 2000 it was held that the decision not that juries have this particular approach. However, to prosecute was flawed and should be reconsidered. In June 2001 academic research on US juries highlights the far greater again the CPS announced its decision not to prosecute. credibility that police witnesses have compared to witnesses with a criminal record (even in cases involving Part of the reason for the difference between the the prosecutions of police officers following miscarriages decisions of the inquest and those of the Crown of justice). The very few successful prosecutions of police Prosecution Service may lie in the different questions that officers involved in miscarriages of justice in the UK are being answered. A failure to prosecute may be justified arguably support this finding. after an unlawful killing verdict in the inquest for a variety of reasons, including the difference between the approach Lastly there is a real difference between the approach of an inquest jury and of a jury in a criminal trial to their taken by the inquest jury and the jury in any subsequent decisions. Before reaching a particular verdict, the coroner criminal trial. The inquest jury may be convinced that the and the jury need to be satisfied on the necessary facts to system was at fault and this needs to be changed and a the required standard of proof. For most verdicts, the lesser, finding of unlawful killing places the responsibility on all civil, standard of proof applies, i.e. “on the balance of those involved for the death. In any subsequent criminal probabilities”.16 But for a verdict of suicide or unlawful trial a particular individual’s own actions are being assessed killing, the standard of proof is the same as that for a and the consequences for that individual of a conviction criminal court, i.e. “beyond reasonable doubt”.17 So the are very severe. This may be particularly problematic as in question remains: why, given that the standard of proof for many cases the officer will not have acted maliciously or a verdict of unlawful killing during an inquest, and the intended to kill.

13 Leon Patterson was arrested on 21 November 1992 on suspicion of being involved in a cash till snatch. Six days later he was discovered dead in his cell. The (second) inquest jury returned a verdict of “misadventure to which neglect contributed”. 14 Christopher Alder, a black former paratrooper, died on 1 April 1998 after being arrested and taken to Queen’s Garden Police Station in Hull. He was arrested after a fight outside a night-club and taken in a police van to the station. He was taken into a custody suite and after 13 minutes police officers called an ambulance. Despite resuscitation attempts, Mr Alder died. 15 The CPS’ previous negative decision in February 1999 was challenged successfully by the family in the High Court in May 2000. However, in January 2002 there was a second decision not to prosecute prison officers following the unlawful killing of Alton Manning. 16 For more detail, see Dorries, Coroners’ Courts, at 9.03. 17 R v Wolverhampton Coroner ex parte McCurbin (1990) 1 WLR 719. 18 For more detail, see p.4, and also sub-section 2.3, at p. 6. 19 See Dorries, Coroners’ Courts, 9.29.

51 Lowering the standard of proof would allow more Liberty views a reform of the criminal law as one of the people to be prosecuted and probably convicted but it last resorts, to be employed only if all else fails, and any cannot be right that police officers should have fewer proposals to change the law would require a greater protections in the criminal process than others. Any such justification and more research of the possible outcomes of proposal would be wrong in principle, likely to contravene such a change than is presently available. The rule of law Article 6 of the European Court of Human Rights and has at its heart the concept that the law should be the same lead to possible miscarriages of justice. for all and the police should not (without good reason) be subject to a different form of criminal liability than other Some argue that the key obstacle to prosecutions members of the public.The creation of a different offence, consists of defects in the law itself. 20 The likelihood of a even if this is motivated by the inability to prosecute the prosecution or a conviction is seen to be affected by the police under the current law, would constitute such nature of the charge laid against those responsible.21 The differential treatment. only permissible charge in most cases for an unlawful death in custody is one of murder or manslaughter: if judges and 2.2.1 Discrimination juries are less likely to convict police officers of such serious offences then perhaps a new, less serious offence Previous cases raise the question about whether the should be created for these circumstances. Although such criminal justice system discriminates against ethnic an alternative might put police officers in a special minorities. Apart from Richard O’Brien (who was white position, perhaps this is better than the current situation in and Irish), David Ewin and James Ashley, the victims of which police officers are rarely prosecuted and never deaths in custody already mentioned in this report were all convicted – the resulting impression for those outside the non-white.24 This creates a presumption of racial bias. system being that police officers are not subject to the rule Tackling minorities’ consequent lack of confidence in the of law. Some people have suggested a wider range of law is an urgent priority. criminal sanctions to reflect the wide range of circumstances in which the legal standard may be 2.2.2 Reasons for deciding not to prosecute breached.This might involve a consideration of the way in which the potential sanctions may be fitted to the various In the past the Crown Prosecution Service did not give categories of incidents and the degree of blame which detailed reasons to the relatives of deceased if it decided not those responsible may be expected to bear.22 Such to prosecute an officer. The case of Manning changed that. attribution of criminal responsibility would necessarily In that case, the then Lord Chief Justice, Lord Bingham, involve the creation of a new offence similar to pointed out: 25 manslaughter or murder, where lethal force is unlawfully used. 23 • Serious questions arising on the available evidence had not been addressed in relation to the crucial issue However, even if the current limited options in the of the neckhold leading to the death criminal law do contribute to the difficulties in securing • The refusal to prosecute was ultimately based on a convictions of the police following deaths in custody, this hypothesis untenable on the available evidence does not necessarily mean we should accept a watering- • A press release issued in the name of the DPP to down of the law itself. The consequence of amending the announce the refusal to prosecute in February 1999 law would be that police officers who had acted in exactly did not accurately reflect the true basis of the the same way as civilians would be treated differently. decision.

20 Reference is made to a paper on the legal control on the use of lethal force by policemen and soldiers in Northern Ireland, see Paper for the Standing Advisory Commission on Human Rights, by Professor Tom Hadden, March 1993. 21 See Tom Hadden, op. cit., at p. 132. 22 See Tom Hadden, op. cit., at p. 166. 23 Tom Hadden, op. cit., at p. 168 suggests either (a) the amendment of the law of homicide to permit a charge of manslaughter to be substituted for one of murder in cases where due to a misjudgement excessive force is used, or (b) the introduction of a new criminal offence of causing death by reckless use of firearms, or (c) the introduction of a new, less serious criminal or regulatory offence of breach of the legal rules for the use of lethal force. 24 A similar situation exists for hospitals. 25 see also: Bhatt, DPP under Scrutiny on Unlawful Killing of Black Prisoner - family make vital step in their five year battle for justice, Inquest Law, Issue 4, Spring 2000, at 1.

52 The consequence of the case was that the CPS is now prosecution decisions are taken by those in a special unit under an obligation to give an accurate, reasonable and and reviewed by independent counsel does not, it is said, plausible explanation for a decision not to prosecute in change the structural nature of this relationship. such cases: The main allegation being made is not that individual The right to life is the most fundamental of all human CPS staff are guilty of bias but that institutions are so rights…The death of a person in custody of the state must intertwined that their interests are too close. The danger is always arouse concern…If the death resulted from violence that even when the two bodies are attacking each other – inflicted by agents of the state that concern must be perhaps over CPS delays or its record on discontinuance of profound. prosecutions – this itself creates institutional pressure not to Where an inquest [into a death]…culminates in a lawful take a high-profile prosecution of a police officer on a verdict of unlawful killing implicating [an identifiable murder charge. individual] the ordinary expectation would naturally be that a prosecution would follow. Irrespective of whether these allegations have any basis In the absence of compelling grounds for not giving in reality,they have a substantial effect on the reputation of reasons, we would expect the director to give reasons [for the CPS in such cases. Even where the CPS has decided decisions not to prosecute] in such a case. perfectly properly not to prosecute, this relationship will contaminate that decision in the eyes of many and will raise This decision provided the first opportunity for the questions about bias. The Director of Public Prosecutions court to examine the handling of a death in custody case has himself asked whether decisions made by the CPS not by the CPS since the Butler Report in 1997 and the to prosecute should not be subject to some sort of appeal.30 Report of the European Committee for the Prevention of An appeal to an independent body would be a welcome Torture in 2000. It is also true that by this time there was a development but this then begs a number of questions. greater consensus to seek a more effective decision-making Firstly,who would adjudicate such appeals? If appeals were process, with more transparency and accountability.As with decided by judges, it raises questions about whether the the problems experienced during the investigation,26 and officer would subsequently get a fair trial if the jury was the inquest system,27 transparency in the subsequent aware that the evidence had already been assessed in this criminal process is a crucial way to combat the lack of way. (This problematic approach was, nonetheless, adopted confidence in the system and to create more accountability. by the Government in seeking to change the law The onus to reveal reasons and to act in a more open way protecting against double jeopardy, in the 2002 Criminal is even greater where a verdict of unlawful killing was Justice Bill). reached by a jury at the inquest.28 Secondly, it is likely that every case would be appealed. 2.2.3 An independent prosecutor? The nature of such cases is such that the relatives would want to explore every avenue: any decision not to Given the extent of distrust that families of the deceased prosecute is likely to be seen as a failure of the justice and the communities that support them have in the CPS, system. Given the few decisions made by the CPS to it has been suggested that the responsibility for prosecuting prosecute in such cases, the reality of an appeal system those responsible after deaths in custody should be would be that the decision was in practice taken out of removed entirely from the CPS.29 Those promoting such an their hands. A third problem with an appeal mechanism is approach argue that the historical, institutional and who would be in charge of a prosecution following a practical relationship between the police and the CPS successful appeal. If CPS staff have decided that the makes it impossible for the CPS to take a robust approach prosecution would fail, it is hardly sensible to ask those to the prosecution of “one of its own”. The fact that same people to prosecute after a successful appeal.

26 See section two of this report. 27 See section three of this report. 28 See also:Attorney General’s office, Deaths in Custody – A Review of the Role and Practices of the Crown Prosecution Service – A Consultation Paper, April 2002. 29 Amnesty International Report, Deaths in Police Custody: lack of police accountability, May 2000; and also: Harrison and Cunneen, An Independent Police Complaints Commission, at 42. 30 At the Attorney General’s Review seminar.

53 However, the CPS has a wealth of experience.There are and regulations must be publicly available and brought to only five members of staff in charge of prosecutions the attention of the family,and that whoever has the job of following deaths in custody: they have a considerable prosecuting must be required to provide detailed reasons expertise. Furthermore, one should shy away from systems for any decision not to prosecute.31 which would treat prison officers and police officers differently from the public. The criminal justice system 2.2.4 Reasons not to prosecute should apply equally to all. The real benefit of a separate institutional body to prosecute the police and perhaps In practice, there can be problems with disclosing all the prison personnel would lie in the symbolism of greater detailed reasons for a decision not to prosecute.There may institutional independence. There is a danger that such a be reasons that prevent a prosecution that are not related to symbolic institution would find it difficult to recruit a guilt or innocence but rather to an actual lack of evidence sufficient number of properly experienced staff. (e.g. the unavailability of a witness or the disappearance of an important document). It is sometimes argued that it may Liberty suggested in an earlier report on police cause more damage for the relatives to know that a specific complaints that perhaps the Independent Police person is guilty of the death but that s/he cannot be Complaints Commission could take over not only the prosecuted because there is not sufficient proof. role of investigation in these cases but also the role of prosecution. Nevertheless, it is recognised that police Furthermore, there may be reasons for non-prosecution officers (and Liberty) believe that a clear separation that are not purely of a factual kind and are not solely based between the investigation and prosecution of offences on the lack of sufficient evidence. These reasons may be should be retained. It is important that the tasks of particularly sensitive, such as an assessment of the investigating crimes and prosecuting crimes must be kept credibility or mental condition of the victim or some other strictly separate, which in practice, if the IPCC were to be witness. It has been argued that the disclosure of such the separate prosecuting body, would be difficult. This information would cause more damage than it would idea was not pursued by Liberty and does not feature in benefit the family. the list of functions for the IPCC set out in the Police Reform Act. However Liberty does not accept that this approach can be justified. Relatives are entitled to know the whole truth Liberty has not completely rejected the idea of a even if it is painful. separate body to deal with prosecutions, but does not wish to pursue it at this point. Instead we prefer to explore ideas 2.3 Attorney General Review to improve the work (and the reputation) of the CPS in the hope that a more drastic solution will not prove necessary. The problem of public confidence in the CPS in these If the CPS continues to make decisions on prosecutions cases led the Attorney General to establish in 2002 a review and to prosecute cases, then a review of its existing of the role and practices of the Crown Prosecution Service structure is essential.There might be greater confidence in in death in custody cases (expected to report in early the role of the CPS if measures were put in place to ensure 2003).32 Its purpose was to consider the present practices of that there was even greater separation between the the Crown Prosecution Service and to assess whether any prosecution of police officers and the rest of the changes need to be made.This review did not include an organisation.A separate department (in a separate building) evaluation of individual cases but rather an examination of directly responsible to the DPP with staff only concerned the fundamental approach and practices of the Crown with police prosecutions would help to avoid the Prosecution Service. In line with that, the consultation perception that police officers were receiving any favoured focused on the Crown Prosecution Service and treatment. Perhaps an advisory committee of expert prosecution decisions, who takes the decision, lawyers could also be set up to assist decision-making. accountability and transparency. It was trying to establish, Obviously Liberty would also recommend that guidelines among other things:

31 For more detail, see: Harrison, Cunneen, An Independent Police Complaints Commission, at 43. 32 Attorney General, Deaths in Custody:A Review of the Role and Practices of the Crown Prosecution Service – A Consultation Paper, April 2002, London; following the announcement by Parliamentary Answer on 13th December 2001.

54 • what the role of the Crown Prosecution Service breach of the Code of Practice or are so perverse that no should be at the investigation stage reasonable prosecutor could have made them.38 • what significance should be attached to an unlawful Nevertheless, practice has shown that a person may face killing verdict delivered after an inquest considerable obstacles in challenging a decision by the CPS 39 • how the Crown Prosecution Service should not to prosecute by way of judicial review. Unless the approach the evidential test bereaved family are very wealthy, they will need to be financially eligible and the case will need to satisfy the • whether the current Crown Prosecution Policy on Funding Code requirements of the Legal Services giving reasons is satisfactory Commission (LSC).The courts use their power to review • what the proper role of the bereaved families and sparingly,40 and where a review is instituted this is not those representing them is in influencing the decision necessarily a guarantee that the CPS will subsequently to prosecute make a different decision. This was most recently • how far reasons for prosecution/ non-prosecution demonstrated by the case of Alton Manning.41 should be disclosed.

The scrutiny of the court at the hearing in this case in This consultation process took place in two stages.The May 2000 focused upon the quality and adequacy of the first was a consultation paper, which sets out the explanation for the decision not to prosecute which the background to the questions above.33 This paper was then CPS was compelled to provide. The then Lord Chief discussed at a consultative workshop.34 In the second phase Justice Lord Bingham ruled that the decision of the CPS of the consultation, a seminar was held, during which not to prosecute any prison officer in connection with the discussion took place amongst some of those consulted. restraint-related death of Alton Manning was unsustainable in law. In the light of the coroners review at the Home Office, this consultation was particularly useful in the sense that it In many cases where a person dies in custody no one may result in a more consistent and streamlined approach will have committed any crime and even with the best to death in custody cases. At the same time, however, this system of investigation, the best evidence and the most consultation indicated that the aim was limited - to robust prosecutors no prosecution should ever be brought. improve existing arrangements, with the CPS remaining in However, in other cases those guilty of offences will escape, charge of the prosecution of those responsible, rather than because of faults in the system which produces evidence to create a separate institution or set up any appeal (or fails to do so) or failures by those who make decisions mechanisms.35 There was no suggestion the evidential test as to whether there should or should not be a prosecution. needs to be changed.36 And there was an indication that transparency, with regard to reasons for non-prosecution, The remedy of judicial review of decisions not to would continue to be limited by public interest prosecute however is not always satisfactory.As can be seen immunity.37 from the Manning case, even the High Court decision that quashed the decision not to prosecute did not result in a 2.4 Judicial Review subsequent prosecution. In early 2002, for the second time in three years, the Crown Prosecution Service decided not Theoretically, decisions not to prosecute can be to bring criminal charges against any of the prison officers judicially reviewed on the basis that they were made in involved in Mr Manning’s death.42 Thus, the High Court

33 This consultation paper was circulated in May 2002. 34 Monday, 13 May 2002. 35 See consultation paper at 4.9 36 see consultation paper,Annex 1 at 21.-41. 37 See consultation paper at 5.8 – 5.15. 38 Hilson, Discretion to Prosecute and Judicial Review, [1993] 2 Q.B. 118; see also: R v DPP,ex p. C [1995] 1 Cr.App.R. 136. 39 This was reaffirmed by Lord Bingham C.J. in R. v DPP,ex p. Manning and Another [2000] 3 W.L.R.463. 40 R v DPP,ex p. C [1995] 1 Cr.App.R. 136. 41 For a description of the case, see section 2.2. 42 INQUEST, Second decision not to prosecute prison officers following unlawful killing of Alton Manning, 25 January 2002, at http://www.inquest.org.uk/ (Press Releases).

55 may well be an important safeguard, but only in cases There are four possible recommendations for change:43 where there has been a procedural flaw, such as where the failure to prosecute was unreasonable or where cogent • Leave the procedure for prosecution as it is, with any reasons were not given. It does not function as an appeal improvements to be recommended by the Attorney as to the merits of the decision. General’s review • Create a special unit within the current Crown Although the Human Rights Act brings Article 2 into Prosecution Service domestic law, the judicial review court is still generally • Create a completely separate body, or concerned only to intervene in decisions which are patently unreasonable. However, the real obstacle to more • Contract the prosecution of those responsible after prosecutions at the moment is a combination of the lack of death in custody out (i.e. privatise the prosecution, evidence available and the approach of the decision-makers contract distinguished human rights solicitors). This in the CPS.These problems cannot be solved with judicial last option is discussed in more detail in the next review. Liberty believes that reform must take place in the chapter. process of investigation and in the decision-making of the Crown Prosecution Service. 3. The disciplinary hearing

However the process of judicial review is not without its 3.1 Introduction virtues because it will often shed more light on the prosecution process. Firstly, the Crown Prosecution Even if the criminal prosecution fails (or does not start), Service will have to justify its decision in writing in those involved in a death can still be subject to internal evidence and in court. Secondly, even though the discipline. Disciplinary action against a police officer can be disclosure rules in judicial review cases are inadequate, initiated in two ways. Firstly, a complaint may be made often further material may be disclosed in the context of against a police officer by a member of the public and this the proceedings. The signal that this sends out is that will be recorded under the Police Act and investigated, judicial review is a means that leads to more disclosure.The sometimes under the supervision of the Police Complaints remedy may not result in a subsequent prosecution (only in Authority. At the conclusion of the investigation, the rare cases will this happen) but it will always result in senior officer of the relevant police force in charge of ensuring the CPS has to justify its decision in detail. discipline must report to the Police Complaints Authority Furthermore, it leads to the relatives being given more with proposals, if any,for disciplinary action.The Authority information and it will nearly always require the CPS to can determine, using the statutory powers available to it, reconsider its decision (even if this is only as part of the whether or not any police officer should face at a formal process of having to justify this decision to the High disciplinary hearing allegations of a breach or breaches of Court). However, only those entitled to public funding the Police Code of Conduct.The second way in which an (the very poor) or the very wealthy will be able to take officer can face discipline is as a result of an internal advantage of this system. This in itself demonstrates a complaint or allegation. problem with the system as a whole. Although any disciplinary proceedings resulting will be 2.5 Conclusion conducted under the same Regulations as apply in the case of public complaints, the Police Complaints Authority will Any recommendations for change must tackle the real not be involved continuously. It will only be involved in substantive problems concerning the prosecution of those finally determining the disciplinary outcome if the responsible for criminal offences.An effective investigation complaint has been referred to it, and it has agreed to and an efficient decision-making process for prosecutions supervise the investigation. In practice, nearly all death in are essential. Any prosecution system needs to promote custody investigations are now referred to the Police trust and confidence and it will only be able to do so if it Complaints Authority with a request that it supervise the guarantees transparency and independence. investigation. The Police Complaints Authority invariably

43 To be discussed in the section on recommendations, see chapter 6.

56 agrees to such supervision and, accordingly, obtains the by professional disciplinary bodies may have greater power to determine the final disciplinary outcome. sanctions applied against them – they may be banned from practising in their profession. Thus, in those cases where the Police Complaints Authority is involved, disciplinary decisions in relation to The police disciplinary procedure is different. Police police officers44 are taken initially by the police employer, officers are not subject to the same degree of professional which must then satisfy the Authority as to the suitability regulation, although dismissal by one police force would of its recommended decision. It is not a system which render it impossible to find employment as a police officer requires agreement between the police and the Authority. in another. Secondly, a police officer has no right to The Authority frequently recommends the conduct of an challenge his or her dismissal in an employment tribunal.47 officer be referred to a disciplinary hearing although the Accordingly, the internal disciplinary hearing system needs police force has not proposed this.45 to comply as far as possible with the provisions of natural justice. Once it has been decided that a disciplinary hearing will take place, the arrangements for convening the hearing and Guidance is issued to police forces by the Home Office for presenting the case to it are a matter entirely for the governing the investigation of unsatisfactory performance employing police force.46 Hearings are presided over by an complaints and misconduct procedures. This is only Assistant Chief Constable with two officers of guidance, however a failure to adhere to it could be an issue Superintendent rank. The complainant may attend the at any subsequent hearing since it may attract a claim that hearing and may be supported by a friend or relative but the proceedings amount to an abuse of process. So its not a legal representative. Hearings are not open to the effectiveness lies only in the fact that there may be grounds public: they are held in private and no report of their of civil liability should the guidance not be followed. proceedings or decisions is automatically published. Liberty believes that there is a need for a more 3.2 The disciplinary process independent approach. Concerns have been voiced that when conducting reviews, PCA members may be unduly The fundamental principle behind the police influenced by disciplinary recommendations made by chief disciplinary system is that the chief officer has responsibility officers or their delegates. In Liberty’s view the proposed for the discipline of his or her police force. There is only IPCC should take more responsibility for finally limited independent intervention represented by the determining the outcome of investigations. The Police ultimate decision-making power of the Police Complaints Reform Act has changed not only the investigation system Authority in relation to disciplinary action that follows but also the disciplinary process.48 public complaints or supervised investigations. Other professions have two disciplinary processes, the first in the 3.3 Sanctions following police disciplinary hands of the employer, which is a private process, and the proceedings and their adequacy second independent of the employer and conducted by the profession as a whole.Whilst Liberty does not accept that, The aim of disciplinary proceedings following an for example, the disciplinary tribunal of the solicitor is investigation should be to determine whether a police adequate, at least this process is independent of the officer is fit to continue to hold their office or rank and employer. The danger with employer-controlled whether or not further training, advice, guidance or disciplinary systems is that the employer may have reasons support should be given to them. However, and not to take proper action against an employee or may wish particularly in cases following deaths in custody, such to settle a case or claim without publicity.Those dealt with proceedings have evolved into another mechanism of

44 This does not relate to civilian police staff, over whom the Police Complaints Authority has no jurisdiction. 45 And where this happens, the police usually agree to the recommendation. If the police do not agree then the Authority has the statutory power to order the bringing of proceedings, and will do so. 46 Except that under the guidance the Authority must be consulted about the case if it has recommended or directed the bringing of proceedings. 47 Although, s/he has the right to appeal to the Police Appeals Tribunal. 48 Though much of this remains to be decided, in regulations yet to be published.

57 public accountability.The most drastic sanction available to However, civil actions do not provide a suitable remedy a disciplinary tribunal is dismissal. But while this may help for the family of the deceased for several reasons. A civil to prevent future misconduct which may have contributed action is unlikely to result in disciplinary action even if the to an avoidable death, it is not something that particularly plaintiff is ultimately successful. Furthermore, so far as we benefits a grieving family. are aware, no civil action following a death in custody has ever led to a criminal prosecution. Lastly, a plaintiff can Thus, disciplinary action may not be seen as an adequate only bring civil action either if s/he has been dependent on remedy for the family of someone who has died in police the deceased in some way, or under the Law Reform custody.Many families, given the consequence of the error Miscellaneous Provisions Act 1934. Under the latter Act, if of the officer – the death of their relative – will not accept there is a surviving cause of action, e.g. negligence, one that even dismissal is a real remedy. This is not to say, may not have to be a dependent to bring a claim.49 however, that disciplinary measures should be underestimated as a form of managerial and public control 4.2 Actions after death over the policing service. Section 1(1) of the Fatal Accidents Act gives a right of 3.4 Conclusion action to “dependants of a deceased person whose death was caused by any wrongful act, neglect, or default” such as Liberty hopes that the Police Reform Act and the would, if the death had not ensued, have entitled the creation of the new Independent Police Complaints person injured to recover damages.50 Dependants are Commission and accompanying changes to the police defined in section 1(2) and include spouses, parents and disciplinary system will produce a more effective grandparents, children and grandchildren, nephews, nieces investigation and outcome in relation to complaints of and cousins and any person who had been living with the police misconduct. Change needs to reflect the important deceased in the same household for a period of at least two themes referred to in this report of transparency, years immediately before the death as husband, wife, parent independence and effectiveness. The forthcoming or child. regulations and the establishment of the IPCC after April 2004, its funding and working practices need to reflect This statutory right of action currently denies damages these principles for this change to occur. and access to justice for unmarried couples, gay couples, and any dependency or relationship that does not fall into 4. Civil action those mentioned categories and people living in these relationships are unfairly discriminated against by this 4.1 Introduction procedure.51 A husband, wife, or parents of an unmarried minor are entitled to damages for “bereavement” in the A civil action against the police is primarily designed sum of £7,500.52 Other damages are awarded as are simply to recover compensation. However there are proportionate to the injury,resulting from the death, to the considerable advantages for relatives to civil actions dependants respectively.53 Such damages are assessed on the following deaths in custody. Firstly, the relatives will be in basis of the “value of the dependency”, in other words, the control of the process – they will be the claimants. dependants are entitled to that sum of money that will Secondly, the rules on disclosure are clearer, more robust replace the “material benefits” provided to them by the and as a result the relatives will in fact be given documents deceased. This statutory right to damages provides that were not disclosed in the inquest. Thirdly, at the trial compensation for material benefits only. the officers themselves will have to give evidence and can be questioned (and cross-examined) directly by the lawyers However, in a dependent relationship there is more acting for the relatives. involved than the material benefit. Such value is not

49 In the Wright case, both a Fatal Accidents Claim and a Law Reform Miscellaneous Provisions Act claim were brought. 50 See section 1(1) of the Fatal Accidents Act 1976. 51 There have been some unsuccessful challenges to the scope of the Fatal Accidents Act under the Human Rights Act. 52 See section 1A(3) as amended by S.I. 1990 No. 2575. 53 They can also get funeral expenses as damages for pecuniary loss.

58 measurable and it is different from relationship to 2. Deprivation of life shall not be regarded as inflicted in relationship. Currently the compensation for contravention of this article when it results from the use “bereavement” is extremely low.Nevertheless, the situation of force which is no more than absolutely necessary: is no different to other European constitutional (a) in defence of any person from unlawful violence; democracies.This underlines the fact that the current civil (b)in order to effect a lawful arrest or to prevent the remedies available are often not appropriate. The escape of a person lawfully detained; consequential effect of low damages will often be that legal (c)in action lawfully taken for the purpose of quelling a aid will not be available for those that seek to sue.54 riot or insurrection.

A possible improvement to the current situation would There may also be cases of deaths in custody which be a reform of the current civil action provisions.There is involve other rights, for instance, claims may be made for a need to provide more recognition and greater violations of Article 3 if the deceased was subject to compensation (in value as well as in eligibility of persons) torture, inhuman or degrading treatment or punishment for cases of death in custody. One suggestion would be to before they died, or as a result of the actions that led to incorporate the role of the inquest system into the civil their death. system.A reform of this kind would aim to give the inquest system more prominence and power, which it is lacking The procedure for making an application is relatively currently.Furthermore, it would provide the deceased with straightforward. It is not, however, a speedy process – it can a suitable civil law remedy.And lastly, disclosure is greater take five years. Applications are initially allocated to a in civil actions than in inquest, and powers to order to chamber of the court, which will decide whether the disclose and to require the attendance of witnesses are application is admissible.55 Inadmissible and unmeritorious greater. cases will be sifted out by committees of three judges. In fact over 95 per cent of cases never make it past this stage. 4.3 Conclusion Unlike cases in the courts of the United Kingdom the decision to allow a case to continue is usually made on the Persons connected with the deceased rarely have an basis of the papers alone, although the Court does still adequate civil law medium available for redress, to sometimes direct an oral hearing on the question of acknowledge their grief and to provide some form of real admissibility. If a case is declared inadmissible there is no compensation for their loss.The civil remedy will only ever right of appeal, there are no further steps that can be taken, be able to deliver compensation. It is unlikely to lead to and no further applications can be made concerning the criminal or disciplinary sanctions. Even the financial same facts. compensation will be paid not by the officers responsible for the death but by the police authority. If the case is not declared inadmissible at this stage it will be ‘communicated’ to the government and the government 5. Remedy on European level will make its ‘observations’ in writing. The applicant will then be given a chance to respond in writing to these Lastly relatives do have a right to seek a remedy from observations. Sometimes the Court will allow the European Court of Human Rights. Article 2 provides: supplementary observations and responses. The Court will set time limits for these processes and after they are 1. Everyone’s right to life shall be protected by law.No one complete the Court will reconsider whether or not to shall be deprived of his life intentionally save in the declare the case inadmissible. If the case is again declared execution of a sentence of a court following his admissible, the parties file further submissions known as conviction of a crime for which this penalty is proved ‘memorials’. Such submissions must set out the case as a by law. whole. There may then be a hearing, though often this is

54 The Legal Services Commission adopts a cost benefit approach except where a case is found to have a significant wider public interest in which case the cost benefit approach does not apply. 55 The details of the procedure are set out in Article 28 to 46 of the European Convention on Human Rights and the Rules of Procedure of the European Court of Human Rights.

59 now dispensed with and cases are decided on the basis of The Tribunals and Inquiries Act 1992 does allow inquiries the papers alone. to compel witnesses to attend and give evidence but this is not often used. There has only been one case in recent The public funding scheme (legal aid) of the United years of an inquiry following a death in custody,namely the Kingdom does not generally cover complaints to the independent investigation into the death of Paul Wright58 – Court.56 Very limited legal aid may be provided by the and witnesses were not compelled to attend. Court but only towards the end of the examination of admissibility (after the case has been communicated). Legal Paul Wright died in custody following an asthma attack, costs are recoverable where a complaint is successful, but for which he did not receive adequate medical attention.An the Court will not award costs at anything like the rate that inquest was held on 29 April 1997.The inquest produced a might be paid in a public funding domestic case. On a verdict of death by natural causes. A civil suit for damages positive note, there are no fees payable to the Court and was finally settled out of court in November 2000, the there is no liability to meet the costs of the government in Home Office having admitted liability in April 2000. any event. Despite an admission of liability for causing death, the Applications must be made within six months of having authorities failed to investigate the circumstances exhausted any remedies in the domestic courts. The time surrounding Paul's death or to identify the individuals limits for lodging an initial application are extremely strict responsible. The Home Secretary had initially rejected a and extensions of time will rarely be granted. There is an request for an inquiry. Nevertheless, in June 2001 Mr application form to complete but sending a letter setting Justice Jackson heard an application by the mother and the out the basic facts and all the relevant Convention articles aunt of Mr Wright, represented by Liberty,alleging that the within six months will be sufficient to stop time running. Secretary of State for the Home Department was in breach The Court will then send a copy of the application form of Article 2 (right to life), Article 3 (inhuman and and automatically give another six weeks for its degrading treatment) and Article 8 (privacy and family completion. life).The application was upheld and on 27 June Mr Justice Jackson ordered that the Home Secretary: Nevertheless, the remedy at European Court level is unlikely to provide the family directly with an appropriate “Do promptly, and in any event within three months remedy. Even successful cases are unlikely to lead to institute an independent public investigation into the prosecutions or disciplinary actions against police officers circumstances surrounding the death of Paul Wright on 7 although compensation might be available. Cases in the November 1996, taking all reasonable steps to enable the European Court of Human Rights rarely involve the inquiry to be effective and providing for full participation disclosure of further information. However, successful cases by the claimants”. in Strasbourg often lead to changes in law or procedure, which will benefit those in the future if not the individual On 4 September 2001 the Director General of HM applicant in the case. Prison Service, with the agreement of Home Office ministers, invited Dr John Davies (a medical doctor) to lead 6. Public inquiries an independent investigation into the death of Paul Wright and to report findings and recommendations to the Home 6.1 Introduction Secretary.The terms of reference for this inquiry were:

Most public inquiries are non-statutory,57 the chair does “To carry out an independent public investigation into the not have the powers to compel anyone to appear and circumstances surrounding the death of Paul Wright on 7 anyone appearing and giving evidence does so voluntarily. November 1996, taking all reasonable steps to enable the

56 For a brief analysis see page 155,Wadham and Mountfield, Blackstone’s Guide to the Human Rights Act, second edition, 2000. 57 Inquiries will always be non-statutory for prison deaths. 58 Commissioned by the Secretary of State for the Home Department. Dr Davies chaired a public inquiry into the death of Paul Wright.The oral hearing took place in Leeds on 17-18 December 2001.The final report was published on 11 July 2002.

60 investigation to be effective and providing for full Home Secretary. The importance and publicity participation by the claimants and to take account of the surrounding a case may influence a decision on whether or judgment of Mr Justice Jackson and of comments and not to set up an inquiry. references to cases and principles contained therein and to report findings and recommendations to the Home For the public inquiry process to be a normal, available Secretary.” remedy, as envisaged in this research, it would need to be a part of the framework rather than an additional and ad hoc The oral hearing of this inquiry lasted two days, remedy for aggrieved family members that is only available although the Chair had access to the files of the Prison in the most high-profile and controversial cases.60 It would Service as well during the course of his inquiry and met also be important to remove the decision to set up an with some witnesses outside the hearing.The inquiry came inquiry from the political arena. A new institutional to the conclusion that Paul Wright died from suffocation structure would not necessarily have to be set up due to an asthma attack. It did not establish the guilt of any specifically. Instead it could form part of the work of, for of the persons involved but merely sought to establish the instance, a Human Rights Commission.61 The need for medical facts of the death, which the family felt were such a Commission with powers to set up inquiries is already known and admitted. The family was concerned currently being considered by the Parliamentary Joint that the inquiry failed to answer key remaining questions Committee on Human Rights.When a family is grieving that they had about the death of Mr Wright.59 for a loved one, the last thing they should have to do is take the Home Secretary to court to force him to hold an 6.2 Public inquiries inquiry.62

Public inquiries as they stand currently are not a useful There are of course other options for inquiries. remedy following deaths in custody. They are a time- Parliamentary inquiries with all the powers to call for papers consuming and expensive procedure and do not lead to the and witnesses can be set up by Select Committees but again kind of solution that the family is seeking. The Wright these are ad hoc and dependent on political interest. inquiry, as the only example available so far, shows that the Obvious candidates for such inquiries are the Home Affairs family was not able to establish individual responsibility for Select Committee in the Commons or the Joint the death of Paul but merely how the asthma attack killed Committee on Human Rights. The latter, a committee of him. both the Lords and Commons, has been considering for some time whether to investigate deaths in custody but Generally public inquiries are only set up after should it finally decide to do so it is unlikely to investigate substantial political pressure. In most cases an investigation particular deaths but rather the more general issues. into an individual death in custody will unfortunately never attract that much interest.The success of an inquiry 6.3 Conclusions depends on financial resources and the power to summon witnesses, obtain documents and require witnesses to Public inquiries currently do not have the financial and answer questions. Currently there is no specific budget institutional power to provide an appropriate remedy. If designated for such inquiries and not all inquires are given they are to be a useful remedy it would be necessary to the statutory powers on witnesses and documents.There is separate the decision over setting up an inquiry from the also no responsible institution (outside the political process) political decision-makers. There would also be a need to that is in charge of setting up such inquiries, reporting on create the financial means and the statutory framework for the findings, and monitoring the success. Currently the such a remedy,so as to provide it with the powers to make decision to set up an inquiry is in the hands of, usually, the it effective.

59 For more detail, see Liberty press release, 11 July 2002 – at www.liberty-human-rights.org.uk 60 This scheme could be comparable to the Wright case.This case was not high-profile, there was no media interest or public campaign.The right to this inquiry was won through the Courts, not through political influence. 61 Following the announcement of the Justice Minister in Scotland, a Human Rights Commission for Scotland is to be created, whose task it is to provide guidance to public authorities, to provide advice to the Scottish Parliament on legislation after introduction, to monitor and report on law and practice, and to investigate and report on human rights issues in relation to public policy. For more detail see “Justice”, 10 December 2001, Scottish Executive: www.scotland.gov.uk. 62 Even though it has been acknowledged that the Prison Service seems to be more sensitive about dealing with families since the Mubarek case.

61 7. Conclusion appropriate remedies for the family of the deceased. And public inquiries do not have the financial or institutional Currently, there are real substantive problems power to provide a remedy.Thus, in order to restore trust concerning the prosecution of those responsible for and confidence, the system for criminal prosecution of criminal offences. Effective investigation and an effective death in custody cases must be overhauled. The system decision-making process are needed. Disciplinary hearings, must become more independent, more effective, and civil actions, or remedies at European level are not speedier.

62 6. Recommendations for Change

1. Introduction custody is not effective, is secretive, too slow and not sufficiently independent. The authorities involved in such The previous sections have highlighted severe cases too often do not take responsibility for their actions shortcomings in the current systems. Article 2 of the and appear defensive. European Convention on Human Rights, the right to life, enshrines the most fundamental right and one of the basic The parallel, overlapping, conflicting and confusing roles values of the democratic societies making up the Council of the police, the PCA and the coroner create problems of Europe.1 Specifically for deaths in custody, the and reduce both the effectiveness of the system and the deprivation of life is even more problematic because the confidence that others might have in it. Coroners do not, state has a positive duty to secure life and it has to take and cannot, supervise investigations because they do not responsibility for the care of those in institutions because have sufficient resources, experience or training. Coroners they inevitably have a substantially reduced capacity to take do not have the time themselves or the resources to employ care of themselves.The consequence is that the State as a others to secure the scene, preserve and obtain the whole must be presumed to have failed if a person dies in evidence or conduct the investigations. In theory, the its care, or custody. police have a supportive role to the coroner. However, in practice this does not work and the police are not subject The state has also failed in its role if it does not to the direction of the coroner. Furthermore, the position investigate the death properly and, where criminal offences and role of the pathologist is not clear. have been committed, prosecute those responsible. If someone has died there is a need to investigate whether The relatives of the deceased are too often excluded and there is a fault in the system, a fault that may put other lives marginalised. From the perspective of the relatives, the at risk. investigation can often appear not so much as a search for truth but as an attempt to avoid blame, to frustrate This section will summarise the shortcomings and disclosure, to restrict the remit of the investigation and to failures in the investigation, the inquest and the other denigrate the deceased. As a result, relatives and their remedies, as highlighted in the previous chapters; and will supporters have little confidence in the system. offer some recommendations for change. The section analyses several models that might provide a better system It is not clear to what extent future changes will improve and then concludes with those that might be the most the current situation. As a result of the Police Reform Act appropriate. and the creation of the Independent Police Complaints Commission (IPCC) all ‘controversial’ police-related deaths 2. Shortcomings in the investigation will be investigated in the future by the IPCC itself. It seems to be the clear intention of the Home Office and others 2.1 Introduction that this should certainly include deaths in custody. The challenge between now and when the new system starts, in Our overall conclusion is that the remedies currently April 2004, is for the IPCC to be able to find and train available for the friends and family of someone who has enough sufficiently experienced staff to avoid the need to died in custody are insufficient and inappropriate. The rely too much on seconded police officers. previous section has highlighted shortcomings in the Lastly, the anticipated improvements to the remedies investigation.These shortcomings will be summarised so as after deaths in custody are too limited. Even though the to provide a basis for the following sub-section, which IPCC will also be able to investigate cases where a ‘non- makes recommendations for change. officer’ member of a police force is alleged to have been involved in a death in custody, it will not be able to 2.2 The investigation investigate deaths that do not involve the police force: deaths in prisons and secure hospitals will remain to be The system as a whole does not create sufficient public investigated by the police and by inadequate internal confidence.The investigation of deaths in police and prison mechanisms.

1 For more detail, see McShane v United Kingdom, European Court of Human Rights, judgment of 28 May 2002, Strasbourg.

63 2.3 Recommendations for change investigation, prosecution or conviction there is, strictly speaking, no differential treatment and no violation of Several models were considered by Liberty during the equality under the rule of law. period of this research.These include: (2) A second option would be the creation of a (1) to improve the investigatory role of the police completely separate commission to investigate all forms of (2) to create a completely separate commission to deaths in institutions or at the hands of the state. Such a investigate all controversial deaths Commission would have many advantages. It would allow greater consistency in investigations, make it much easier to (3) to give coroners an investigatory role build up expertise in investigating deaths, and it could (4) to give members of the upcoming IPCC an create a powerful force for change. Proponents for such a investigatory function in deaths in other institutions Commission include INQUEST and the United Friends (5) to mirror the role of the IPCC in other institutions and Families Campaign. by, for instance, putting the Prisons Ombudsman on a statutory and independent footing However, the disadvantages of this proposal may (6) to establish an over-arching commission that would outweigh the advantages. It does not tackle the root bring together the concerns that arise from deaths problems, i.e. deficiencies in the investigation of police in custody but would not investigate individual complaints more generally. Furthermore, the relatively cases. specialised remit of such a Commission might prevent the development of expertise across the policing area.2 The (1) It has been suggested that taking the investigations same would be true for the investigation of deaths in away from the police would be a mistake. It is a key prisons and in secure hospitals. The other complaint underlying value of the rule of law within the criminal mechanisms in those jurisdictions would not benefit justice system that it operates in the same way for all, directly from the experience of investigating deaths. Also, whether the suspects are police officers or civilians. there would be some degree of artificiality as to which According to this view all cases should be investigated by cases were investigated by the Commission. For example, those whose job it is to uphold the law – the police cases where a person was injured but did not die in police themselves. Thus, any proposals should not create new custody would have to be investigated by a different body institutions but should instead involve the creation of new even though the issues and problems are no different to mechanisms to ensure that the police undertake the similar cases where the person died from the injury. investigation properly. This proposal also has some other practical problems. Nevertheless, such a system would not deal with the While such a Commission could certainly guarantee major criticism of the current system, i.e. the fact that the independence it would cut across the progress made on the police investigate themselves and in many cases are not establishment of greater independence in police complaints trusted to do so by the families of the deceased and the (the IPCC). The creation of the Independent Police communities from which they come. The current Complaints Commission gives the authorities a good arrangements are never likely to create sufficient public reason not to take any other steps at present. confidence, no matter how effective the investigation actually is. In fact, many of the families of those who have (3) Another suggestion would be to give Coroners died express the view that they want the investigation to be further powers and their own staff to investigate deaths. the same as for any other homicide and have not This would have the flexibility to ensure that any demanded preferential treatment. However, the practice controversial death was investigated independently. It over the recent past suggests that this system does not would take the investigation away from the police (see work. We have concluded that deaths in police suggestion (1)) and it would ensure that all deaths, i.e. custody must be investigated independently. As long police, prisons and secure hospitals were investigated as the same legal rules apply to the mechanism used for independently (see suggestion (2)).

2 Expertise that should be developed by the IPCC.

64 However, the problem with this process is that it would a difficult task. Already the date for the IPCC going live mix the investigatory stage with the adjudication.Thus the has slipped a year to April 2004. Expanding its remit now coroner would have to take an initial view of what the lines or within the first years of its life could erode its ability to of investigation should be but later rule on the same issues carry out its current task and might make it more likely at the inquest itself. Also, unless significant changes are that it will fail. Secondly,unless its remit was extended not made to extend the skills and the experience of coroners, just to deaths in custody but to other serious complaints in this option would not be viable in practice. prisons and hospitals, it would suffer from the disadvantages set out above. (4) The fourth alternative would be to build on the creation of the Independent Police Complaints (5) Liberty favours the option of developing a Commission.The IPCC will have its own investigators and separate and parallel complaints mechanism to the this potentially secures the necessary independence. IPCC for prisons and for hospitals for the However, due to practical reasons, it is likely to employ or independent investigation of deaths. It may well be have seconded to it ex- or serving police officers (at least that institutional links could be built between those bodies when it first starts work).This process needs to be managed to ensure that the advantages of one Commission (see carefully. Liberty has previously recommended that there above) could be captured without the disadvantages. Of should be a certain minimum ratio (e.g. 75:25) of non- course significant improvements would need to be made to police investigators to protect independence. the current systems for dealing with complaints in prisons and hospitals to bring them at least in line with the powers IPCC staff will need to be properly trained, monitored, and resources of the IPCC. For instance consideration and supervised. The process of investigation needs to be needs to be given to the possibility of the Prisons quicker and there needs to be proper liaison with the Ombudsman being given a more significant remit, being relatives, the coroner and other parties.Work will need to appointed independently, having statutory powers and be done to ensure that transparency is a priority and that having investigators to investigate deaths in prisons. At the investigation reports are disclosed immediately. Further, if moment, the post of the Prisons Ombudsman is too this option were to be pursued, there would need to be an strongly connected with the Home Office. internal department to provide Scenes of Crime Officers and this would need to be justified economically. At the Liberty and INQUEST believe that the lack of genuine very least it would be necessary to ensure that there are demonstrable independence from the Prison Service leaves sufficient resources to deal with each new death the Ombudsman’s role vulnerable to criticism that it is not immediately and thoroughly. a truly independent body. Many of his staff are Home Office employees on secondment which again, without In practice it is most likely that the immediate control radical change, would undermine confidence. of the scene can only be undertaken by the home force, however, once the Independent Police Complaints INQUEST believes that the relationship which the Commission has been notified the investigator can take Ombudsman has to maintain with prison staff to perform his control of the investigation. Sanctions against forces that do current role of investigating prisoner complaints is likely to not comply with instructions may be necessary. be at odds with the role of investigating deaths in custody. The Ombudsman needs good working relationships with This model does not resolve the problems with regard prison staff to be effective when investigating prisoner to investigations in prisons and secure hospitals – unless the complaints. If he were then involved in, for example, taking IPCC’s remit were extended to cover those institutions statements from prison officers which might lead to too.This option could be run as a pilot project initially and prosecution or civil proceedings, it is difficult to see how the if successful, the IPCC’s powers could be expanded. two roles can be reconciled. Currently investigations by the Ombudsman are almost entirely paperchases – it is rare for There are however a number of significant difficulties the Ombudsman to undertake investigations which require with this option. First, the process of establishing the a fact-finding mission. IPCC and getting it to work efficiently and effectively (including ensuring that the investigation is independent) is The Prison Service has been looking at ways of

65 strengthening investigations of deaths in prison and in However, we realise that there are many common particular through bringing in an independent element. It concerns that arise between deaths in different custodial put out a consultation paper about this in December 2001, settings and that separate bodies to investigate specific setting out options. deaths do not easily allow those concerns to be addressed on a more holistic basis. There are a number of ways in One of these options was that investigations should be which this problem could be dealt with. conducted by the Ombudsman instead of the Prison Service.The Ombudsman is willing to take on this role as First, institutional links could be built between the long as there are sufficient powers and resources to fulfil IPCC and those new bodies that we propose, to ensure that this role effectively.A government white paper noted that common concerns are dealt with, common lessons are such a critical appointment should have a clear statutory learned, and the bodies can work together for change. basis: legislation on this can be expected in 2003.3 Representatives from each agency could be involved as well as those working with bereaved people, non- (6) Liberty also supports the creation of a government organisations etc. separate, over-arching commission. This body should act primarily not as an investigator, but as a Standing However, Liberty’s preferred option, as stated above, is Commission on Custodial Deaths. the creation of a separate, over-arching Standing Commission on Custodial Deaths. Its mandate should be Deaths in custody should be independently investigated, to bring together the experiences from the separate and no longer be carried out by a state agency. There investigatory bodies set up to deal with police, prison, should be an independent body set up to deal with each hospital deaths and others. Such an over-arching body institution, to investigate deaths in custody and other could identify key issues and problems, develop common serious allegations.These new bodies would then be able to programmes, research and disseminate findings where help the institutions to learn any lessons from mistakes appropriate, and ensure services work together for change. which resulted in deaths, as well as from other complaints Lessons learned in one institution could be promoted in made by those detained. The creation of one body to other institutions, best practice could be promoted, and investigate all the deaths in all the institutions would not new policies designed to prevent deaths could be drafted have this key virtue. and implemented across all institutions. Differing policies could be identified and changes suggested (for example We also believe that this proposal is realisable in practice. with regard to restraint techniques, where it appears that The IPCC will be in place in 2004 to deal with deaths in every institution has differing policies). police stations; and steps are already being considered to improve the resources and independence of the Prison We do not think that this Commission would usually Ombudsman. investigate individual cases or duplicate the work of the other investigatory bodies – although it should have Neither giving Coroners further powers and their own powers that would allow it to intervene as an interested staff to investigate deaths, nor expanding the remit of the party in an inquest where appropriate. It should also have IPCC to investigate deaths in prisons and hospitals, are the power to hold a wider inquiry in circumstances where sensible or likely to be possible in practice. Liberty favours there was a consistent pattern of deaths; or where several the option of developing separate and parallel complaints deaths had occurred in a particular institution, or as a result mechanisms to the IPCC for the independent investigation of similar circumstances symptomatic of a deeper systemic of deaths, serious injuries and other serious allegations in malaise. It should certainly be able to insist on access to prisons and hospitals.We also think that a similar approach documents and have the power to summon witnesses should be taken to other institutions where people are (powers similar to those given to the Commission for detained, including reception and detention centres for Racial Equality or the Equal Opportunities Commission) asylum seekers. for the purpose of such an inquiry.

3 White Paper on the Criminal Justice System, Justice for All, July 2002, at para. 6.39.

66 Except when conducting inquiries we do not think that followed up. Riders have been abolished. Lastly, the lack of this Commission needs substantial resources. We suggest sufficient funding for lawyers for the relatives violates the that its membership could include representatives from the principle of ‘equality of arms’. other investigatory bodies, although there should also be other independent members who should represent or 3.3 Recommendations for change reflect the interests of people detained in these institutions. Two views have emerged on how the system could be 3. Shortcomings in the inquest system amended so as to provide an effective remedy after a death in custody: 3.1 Introduction (1) abolish the current inquest system completely and replace it with something else Several shortcomings have been highlighted in the coroners’ inquest system. However, the inquest cannot cure (2) improve the current system and make it more the defects in the investigation outlined above; and any effective. system proposed for the future needs to ensure that the With regard to the latter, two options must be examined: preceding investigation is effective. (2) (a) to incorporate the coronial system into the civil courts system, and The following sub-sections will summarise the (2) (b)to hold on to the inquisitorial role of the coroner shortcomings of the inquest system and will then make but to improve and update the inquest system. recommendations for change. Liberty was aware of the ongoing coroners’ review undertaken by the Home Office and hopes that the ideas in this report will be considered (1) By abolishing the inquest system and replacing it by the review team. with an alternative system, the proceedings in England and Wales could be brought in line with other European 3.2 The inquest system systems. However, the experience and expertise that has been developed so far by coroners and others would be The current inquest system is not sufficient because it lost. Furthermore, the need for a transparent and effective does not provide the family with an effective remedy and process of investigation as it arises under Article 2 of the the process itself has several flaws. There is a lack of European Convention on Human Rights would not be transparency, because disclosure is not provided as of right, satisfied if not replaced with another appropriate model. it is not provided early enough and there are too many exceptions which allow material to be kept secret. The Civil actions are only possible where there are relatives process is adversarial in practice in these cases but it is who can claim compensation for loss, and civil actions are confusing because it purports to be inquisitorial. only possible for the very poor (with public funding) or the Coroners are not appointed with sufficient powers to be very wealthy who can afford to pay for their own lawyers. truly independent when dealing with controversial cases, Furthermore, civil courts focus on issues of liability and are and they lack the necessary skills and training.The jury is not particularly good at exposing the truth. In cases where too restricted in its ability to frame verdicts and cannot there is no evidence of a tort being committed no action make recommendations. The ‘verdicts’ are not really can be taken. verdicts at all and do not identify who is responsible, or provide for accountability and liability. The ‘judgments’ The criminal process is also flawed and would be even given by the inquest jury as to responsibility do not lead to more inadequate as a remedy if this is the only forum any form of legal liability.This creates anomalies and a lack following a death.The small numbers of prosecutions and of consistency within the system as a whole. the absence of convictions would suggest that this remedy is unlikely to provide a sufficient system of redress. The There is a failure to learn lessons from deaths because need to identify actions of a particular individual as the findings and recommendations of coroners are not violating the criminal law and finding sufficient evidence published, and recommendations are not monitored or to meet the higher standard of proof (beyond reasonable

67 doubt) are problematic. The reluctance of the Crown The usual rules of disclosure in civil proceedings would Prosecution Service to prosecute and the reluctance of apply to the inquest, as would the other legal safeguards. juries to convict police officers remain real issues. District judges (coroners) would be selected via an open process (advertisement) with clear criteria (they should all Liberty’s view is therefore that the current system have legal qualifications and job descriptions), be properly should be radically improved – still, where possible, trained (and be obliged to undertake continuing using the expertise that has been developed so far professional training) and have their performance subject by coroners. This option might leave the Independent to regular monitoring. A proper complaints mechanism Police Complaints Commission in charge of the should be established. Appointment would be undertaken investigation with the coroner having only an adjudicatory at a national level, and pending the establishment of a fully role (although some of the other options for investigation transparent judicial appointment commission would be by set out above are compatible with such a role). However, the Lord Chancellor.We fully support the proposal of the without substantial amendment, the current system will Coroners’ Review Team that “the appointment of coroners not tackle real problems such as inconsistency in the should involve an assessment of their suitability to work adjudication of coroners, the discrepancy in the standards with bereaved families and individuals.” being applied and the lack of experience of coroners in some areas or districts with such controversial deaths. This approach might reflect some elements of the Scottish system (for instance the fact the (2) (a) One option discussed is to integrate coroners coroner/procurator fiscal is a qualified lawyer).With regard into the civil justice system. They would have to be to jurisdiction it may be advisable to increase the powers of replaced or re-appointed as judges, such as district, circuit the coroners’ court. Coroners could continue to control or High Court judges.The seniority of the judge sitting as evidence (as would a judge in civil proceedings), assisting a coroner would depend on the level of seriousness of the the jury to reach a verdict. In contrast to the Scottish case involved.There would be a right of appeal to the High system however, all controversial deaths in England Court on a point of law (rather than families and others and Wales should be heard by a coroner and a jury. having to rely on the discretionary remedy of judicial It has been suggested that it is in the interests of the families review). We also support the approach that the Review for the inquest system to remain inquisitorial and that an Team have taken that the Attorney General’s role in integration into the civil courts would make the system granting his “fiat” (permission), before cases can go more adversarial.As a result, it might not reveal as much of to the High Court seeking to quash the decision of the truth as possible. Nevertheless, Liberty believes that an inquest, should be abolished. this option will result in fairer inquests and as a result a more open system. Clearer rules of procedure are needed for inquests, incorporating a number of key changes outlined in this Given that the inquest is the only effective means of report. The family should be a party and have the right to investigation, we do not recommend that it is a committal be properly represented. The inquest system would be stage in the criminal process. Liberty did carefully consider generally adversarial, providing the coroner with an this option but rejected it. adjudicative role (although retaining some inquisitorial powers such as the ability to call witnesses). The Liberty also believes that the privilege against inquisitorial role might also need to be available if no one self-incrimination should be abolished so that was able to represent the interests of the deceased. The police officers and others are forced to give family and all interested persons should be given all the evidence and answer questions in the inquest. As we powers of a party to civil litigation, i.e. the powers to cross- have suggested earlier on in this report, any evidence that examine, to address the jury, and to call witnesses. All the is thereby given should not be admissible in criminal evidence presented to the inquest should be liable to cross- proceedings. examination. Legal representatives or properly interested persons themselves should be able to sum up the evidence (2) (b) In addition, some more detailed amendments are and to address the jury as to the facts. essential to increase effectiveness and confidence in the

68 amended system.To enhance transparency,coroners should possibility of coroners pre-judging the case before they provide specific justification for any witnesses they want to have heard the evidence. call themselves. It was suggested that perhaps, to strengthen the power of the coroner, the coroner should have ‘counsel Liberty also contemplated whether the inquest system to the inquest’ as is common in public inquiries. There are should decide criminal liability (or at least provide an some virtues in this but Liberty was concerned that this alternative committal process again), given that we are might undermine the position of the parties (particularly proposing such major changes to the inquest proceedings. the relatives) and might continue to marginalise their However, integration of the inquest system into the involvement in the process. criminal system is opposed on the basis that the underlying aims of the two systems are quite different. The verdict There should be a full review of existing verdicts, after an inquest is concerned more with the corporate with a verdict indicating negligence or a failure in a criticism of the police if any is appropriate, i.e. the inquest general duty of care introduced to the prescribed examines whether the system failed as a whole. The list. The parties could draw up and the coroner could criminal system focuses on the prosecution or the agree specific questions for juries to answer. A model establishment of liability of the individual officer, and as similar to jury trial in civil cases (such as cases alleging such is more personal. Consequently,this idea was rejected unlawful police detention) could be adopted, i.e. precise by the Advisory Committee. questions of fact would be agreed between the judge and the parties. Juries should be allowed to use narrative 4. Shortcomings with regard to other remedies verdicts allowing expression of issues of concern in those cases not suited to prescribed verdicts. Where the jury 4.1 Introduction considers that negligence or a failure in a general duty of care contributed to a death, this could be added as a rider The inquest procedure should be part of a consistent to the principal verdict. legal system.This involves a certain harmony with the civil and criminal procedures. However, despite unlawful killing Properly interested persons should have the right verdicts at inquests there have been few prosecutions and to legal representation at inquests and in deaths in no successful ones, i.e. no convictions. It is also the case that custody cases. Means testing for public funding should be existing remedies available in civil litigation or as a result of abolished in death in custody cases. Liberty believes this is internal disciplinary procedures are neither appropriate nor justified because of the importance of the issues, and sufficient for these very serious cases. Public inquiries are because of the crucial importance of representation (means rare and can never be guaranteed as a standard or regular testing is not required in other circumstances – for instance, statutory system of redress. free legal advice is available for those detained at police stations and for the representation of children in family Given the shortcomings of the inquest system as it cases in the courts). stands currently and the flaws in the remaining legal system, the families of the deceased are left without an Liberty considered a third option, of increasing the effective remedy.The following sub-section highlights the powers of the coroner to act as investigators.This could be shortcomings of the other remedies and makes one way around setting up additional investigatory bodies recommendations for improvement. for each institution (police, prisons, and psychiatric hospitals), yet it would also create the problem that the 4.2 The other remedies coroner would then act as adjudicator and investigator. Liberty does not therefore support this recommendation. Civil action currently plays a relatively minor role after Coroners do not have the training to secure a crime scene. a death in custody because it is purely about compensation, Such a dual role would create controversy in the eyes of does not often contribute to the finding of the truth, and many including some coroners but, perhaps most is only likely to be pursued if the family member has been importantly, in the eyes of the family. It could create the financially dependent on the deceased. Indeed 95% of civil

69 actions are settled outside of the courts and the parties who Theoretically decisions not to prosecute can be settle do not necessarily find out any more about the cause judicially reviewed on the basis that they were made in of the civil wrong. For instance, even though there was breach of the law (including of course the ECHR) or are compensation in the Wright case – unusual because the so perverse that no reasonable prosecutor could have made mother was financially dependent on her deceased son – them. Nevertheless, in practice this rarely results in a Article 2 required that there was an inquest, and then, as a successful challenge, and even where a judicial review is result of problems with that process, a public inquiry to successful and the original decision not to prosecute is establish the truth.4 quashed, it rarely results in a different decision subsequently by the Crown Prosecution Service. Disciplinary proceedings taken against the police officer involved offer another method of redress. However, for the There is anecdotal evidence that juries tend to be biased family, it does not provide a real remedy.The family wants in favour of police witnesses in criminal trials compared to to find out what has happened, who is responsible, and they other witnesses, some of whom may have criminal want to see those individually responsible held liable. convictions. Police, prisoners and staff of secure hospitals Disciplinary proceedings will rarely satisfy them because are seen as people who protect the public and it is difficult the most severe remedy is the loss of employment. for juries to punish them. Disciplinary proceedings are further flawed by their current rules. For instance, although the family can attend 4.3 Recommendations for change any subsequent disciplinary proceedings, they cannot have a legal representative. Disciplinary proceedings in the With regard to criminal prosecution after deaths in prison service have even less accountability and there is custody, three options were considered on how the system even less transparency. could be improved:

Criminal prosecution is the most appropriate “other” (1) create a completely separate body responsible for remedy for deaths caused by agents of the state. It is a these prosecutions mechanism that holds those individually responsible (2) transfer the responsibility of charging to another directly liable. Currently the Crown Prosecution Service (existing) body, or prosecutes in cases involving death in custody. However, prosecutions against police officers often never get started (3) leave the procedure as it is but make amendments to and those that do have never ended in a conviction. improve the Crown Prosecution Service’s role.

The evidential test for prosecutions prescribes that there (1) Public confidence in the impartiality of prosecutions must be enough evidence to provide a realistic prospect of of those responsible for a death in custody could be conviction, i.e. that it is more likely than not that the achieved, by transferring this duty from the Crown defendant will be convicted on the proper standard of Prosecution Service to a new, separate body. This would proof – beyond reasonable doubt. There is a great deal of answer the need for greater independence and less concern regarding who has the responsibility for the perceived conflicts of interest.There is a perceived bias in decision-making in such cases, and regarding the the police and CPS which some of those bereaved would accountability and transparency of that process.There is no argue prevents viable prosecutions going ahead. It has been statutory obligation to reveal the reasons for non- argued that this is reflected in all-too-often nonsensical prosecution to the family – even though in practice this is analysis of evidence by the CPS.6 Others state that there is now taking place.5 clearly a danger that the Crown Prosecution Service

4 For more detail on this case, see the earlier section on ‘other remedies’. 5 A Direct Communication with Victims policy has been officially adopted since September 2001;however, the CPS also met with families before the policy was adopted on the basis of a pilot project. Furthermore, if no prosecution is to take place, the CPS now sends a detailed letter to the family setting out the reasons for this decision. 6 For more detail, see the submission of Birnberg & Co as cited in Harrison, Cunneen, An Independent Police Complaints Commission, 42.

70 appears to make judgements involving the police that are Commission, or the inquest court, must ensure that the not properly balanced.7 The interests of the police and the investigation and the prosecution are separate and CPS are too close and the danger of contamination is ever completely independent. This separation must be present regardless of how much individual staff try to safeguarded.The dangers involved in this option are in the preserve their integrity and independence. vesting of conflicting powers in the same body: and of However, to set up another independent body simply powers and processes which are significantly different. for the prosecution of police officers is likely to attract (3) A third option would be to leave the system as it is but resistance. The expense of another separate body with a to improve the current performance of the Crown separate infrastructure would be a particular concern Prosecution Service. This could involve the creation of a considering the very low number of cases it would have to special unit, perhaps directly responsible to the Director of handle. Furthermore, there are currently only five experts Public Prosecutions and separate from the rest of the CPS. dealing with cases of deaths in custody.These five experts This option would have the advantage of continuity and comprise a valuable source of expertise that should not be consistency – the role of the CPS would stay the same and excluded from any future decision to prosecute. everyone would be dealt with in the same way.It would also allow the experience and expertise so far to be utilised (2) There were several suggestions on how to transfer efficiently. An alternative would be for this unit to be based the responsibility for prosecution – or perhaps just the in the office of the Attorney General and responsible to him. charging process – to another, existing body.One would be that the Independent Police Complaints Commission Whatever system is proposed, however, there need to be should conduct the investigation and, where appropriate, greater opportunities for enhanced scrutiny of the system. charge the person responsible for the death (rather than the This involves a clear legal requirement that extensive charging process being passed on to the police or the CPS). reasons are given for non-prosecution in such cases. The The onus to continue with the prosecution would still rest family also needs to be kept informed throughout the with the Crown Prosecution Service once it took over the decision-making process and during the prosecution itself. prosecution. This option is superficially attractive but is In this respect Liberty welcomes the review by the unlikely to have anything more than a symbolic effect in Attorney General of the system within the CPS of practice. prosecutions following deaths in custody.

An alternative approach would be to enhance the It has been suggested that there should be the possibility powers of the coroner’s court.The verdict could act as the for an appeal if the CPS decides not to prosecute.An appeal committal stage for any subsequent criminal trial and the would be more advantageous than a judicial review.9 The onus would again then be passed on to the Crown availability of an appeal presupposes something more than Prosecution Service to continue with the prosecution.The a review of the legality of the process as in judicial review. question of criminal liability was excluded from the verdict Any appeal would have to allow an examination of the of the coroner in 1977,8 and the coroner’s power of merits of the decision not to prosecute. However in committal was removed. In this option, criminal liability practice, if this was implemented, every single decision not could be partly determined by the coroner and the verdict to prosecute would be probably be appealed. Thus all of the jury would be more significant. controversial decisions would be decided by the appeal process – the practical result being to shift the decision on This alternative would guarantee the independence that whether to prosecute to the appeal body. is needed to raise public confidence in the current criminal system after deaths in custody. However, there may be a Secondly,it is not clear who would sit on such an appeal problem if this was combined with the coroner’s role as body.If they were judges, two questions arise. What are the investigator. The Independent Police Complaints consequences of judges making decisions about

7 For more detail, see Home Affairs Committee Report - Police Complaints and Disciplinary Procedures, First Report,Vol. 1, 1997. 8 Criminal Law Act of 1977. For more detail, see Dorries, Coroners’ Courts, at p. 12. 9 This idea was floated by the Director of Public Prosecutions at a 2002 seminar.

71 prosecutions before trials? And would such decisions be less (2) All deaths in custody should be investigated at the likely to be challenged in judicial review proceedings? very start as homicides.This suggestion again highlights the central role that the investigation plays in the whole process The third issue that would need to be resolved if an after a death in custody. The securing of evidence is the appeal system was created is who should take on the basis for the inquest proceedings and for any criminal prosecution if an appeal was successful. It hardly seems prosecution. Any flaws during the investigation will sensible in a controversial case to send the prosecution back jeopardise the later process. Liberty believes this is a to the CPS after an appeal. To ask the CPS to prosecute – sensible suggestion and may help ensure better the very same body or person who decided that there was investigations pending the time when the IPCC takes over no realistic prospect of prosecution – is not likely to create the role. any more public confidence than exists in the current flawed processes.The chances of such a prosecution being (3) Another suggestion involved widening the range of robustly pursued seem remote. criminal sanctions to reflect the wide range of circumstances in which the legal standard may be Several other more detailed options for change have breached.This may involve considering the way in which been considered.These include: the potential sanctions may fit the various categories of incidents, and the degree of blame which those responsible (1) an amendment to the Code for Crown Prosecutors, may be expected to bear. However, conceding that the adding a presumption that there should be a current limited options in the criminal law contribute to prosecution if there was an unlawful killing verdict in the difficulties in securing convictions against the police the inquest following deaths in custody should not necessarily lead to (2) a requirement that all deaths in custody should be the watering-down of the law itself. The consequence of investigated as homicides by the police (as already amending the law will result in police officers, who acted occurs in some areas), and in exactly the same way as civilians, being treated (3) the possibility of the creation of a new criminal differently. The law should be the same for all, and the offence especially for deaths in custody and/or police police should not be subject to a different form of criminal officers. liability than other members of the public.The creation of a different offence, even if this is motivated by the inability (1) An amendment to the Code for Crown Prosecutors to prosecute the police under the current law, would could either create a presumption that there should be a constitute such differential treatment. prosecution or could make it virtually automatic after an unlawful killing verdict. It would also mean that the 4.4 Other recommendations evidential test did not become an insurmountable hurdle because of ‘over-analysis’ by the Crown Prosecution Service.10 However, at the same time, it would mean that Whatever system is created, improvements need to be cases could still be screened as they progressed to avoid made in the use of pathologists. One way to do this would them failing at a later stage. If the case does not have a be to set up a legal framework to structure their reasonable prospect of succeeding it will still fail, whether procedures in these cases. The work of pathologists itself that is established before the case comes to court or during also needs to be monitored. This could be done, for the court proceedings. Indeed, it would result in more example, through an institute such as the Royal College of emotional distress for both the deceased family who may Pathologists (which already oversees the education, have had high expectations which will be frustrated if the training and assessment of pathologists and the setting of case has gone to court but failed and for the police officer standards for practice). who would be subject to an unnecessary prosecution. There is thus a great benefit in screening the cases The coroner and the pathologist should proceed with beforehand. How this is done and who this is done by is a their duties quickly in order to enable the release of the different matter. body to the bereaved as soon as possible after the death.

10 This was a problem identified by Judge Gerald Butler at a recent seminar organised by the Attorney General.

72 5. Overall conclusion and recommendations

The system for investigating deaths in custody needs fundamental reform. In particular:

• The dominant link with the police in investigations must be broken • Every death in custody must be investigated as a possible homicide • All custody deaths must be investigated independently.The IPCC must be in charge of the investigation into police custody incidents; a reformed and more independently-organised prison ombudsman system should be in charge of the investigation into prison deaths; and an equally independent system must be created for deaths in psychiatric hospitals • An over-arching standing commission should be created to learn lessons from deaths in any institution in which a person has been detained; to monitor progress on preventing deaths and recommendations from inquests; and to spread good practice • Liberty re-emphasises that, in the long term, the majority of investigating personnel in the IPCC must not be police- related: the ratio of non-police to police must be at least 3:1.

Further:

• Coroners should have a more judicial role, adjudicating over an adversarial process – but they should retain some inquisitorial powers (e.g. to call witnesses) • There must be a right to legal representation: means testing for legal aid in inquests concerning deaths in custody should be abolished • Relatives of the deceased should have the rights of a formal party to civil litigation • The inquest must be more accessible, language must be simplified, and a designated person must be assigned responsibility for the welfare of the family and for explaining the process • The inquest jury must be retained for all inquests into controversial deaths • The jury must have more powers • Recommendations must be a regular component of the inquest verdict.These must be published, their implementation must be monitored, and a publicly accessible database must be created • Pre-inquest disclosure must be compulsory • The process must be speedier • The role of the Attorney General in giving fiats as a preliminary to overturning inquest decisions should be abolished • CPS performance must be improved – possibly through creating a separate, specialist deaths in custody unit reporting directly to either the Director of Public Prosecutions or the Attorney General • Coroners could be integrated into the civil justice system.A new right of appeal to the High Court of points of law should be established • The privilege against self-incrimination should be abolished – but evidence thus given should not be admissible in any subsequent criminal trial • There should be a presumption in the Code for Crown Prosecutors that a prosecution will follow a verdict of unlawful killing, subject to the evidence test • Clearer procedures and monitoring are needed for the work of forensic pathologists • A Chief Coroner or President of Coroners could help implement monitoring, raise standards, ensure regular training, publish guidance on good practice and deal with complaints.

73 APPENDICES

1. UNLAWFUL KILLING VERDICTS AND/OR PROSECUTIONS FOLLOWING DEATHS IN CUSTODY SINCE 19901

Name Ethnicity Date Custody Prosecution Inquest Verdict 1. Oliver Pryce Black 1990 Cleveland Police No Yes Unlawful killing 2. Omusase Lumumba Black 1991 Pentonville Prison No Yes Unlawful killing 3. Leon Patterson Black 1992 Greater Manchester No Yes Unlawful killing (first Police inquest); Misadventure contributed to by neglect (second inquest) 4. Joy Gardner Black 1993 Metropolitan Police / Yes – acquitted No N/A Immigration & Nationality Dept 5. Richard O’Brien Irish 1994 Metropolitan Police Yes – acquitted Yes Unlawful killing 6. Shiji Lapite Black 1994 Metropolitan Police No Yes Unlawful killing 7. David Ewin UK White 1995 Metropolitan Police Yes – acquitted No N/A (shooting) (jury could not agree a verdict) 8. Alton Manning Black 1995 Blakenhurst Prison No Yes Unlawful killing 9. Ibrahima Sey Black 1996 Metropolitan Police No Yes Unlawful killing 10. James Ashley UK White 1997 Sussex Police Yes – acquitted No N/A (shooting) 11. Christopher Alder Black 1998 Humberside Police Yes – acquitted Yes Unlawful killing

2. Research trip to Toronto, July 2002, death in 2.2 Information custody project The trip was successful in putting the current research 2.1 Contacts into a broader perspective, allowing for international Dr James Cairns Deputy Chief Coroner for the province comparison and demonstrating some very useful practice. of Ontario The office of the coroner in Canada (Ontario) has its roots in the English model, however over the years the system in Peter A. Tinsley Director Special Investigations Unit, Canada has undergone changes. In Canada, the system of Ontario, Mississauga inquiring into deaths is a provincial responsibility,and each Rose Hong Communications Manager, Special Province has a slightly different system (some have a Investigations Unit, Ontario, coroner’s system, some have a medical examiners system: in Mississauga some provinces coroners are lay people, in other provinces Tam Goossen President of the Urban Alliance on they are physicians, and in some provinces they only have Race Relations,Toronto (NGO) pathologists). This comparison focuses on the province Ontario (coronial system, largest Province, and dealing Audi Dharmalingam Founding member of the UARR, with the most deaths).The following can be concluded: Toronto

Julian N. Falconer Falconer Charney Mackilin,Toronto • All coroners by law must be medical doctors. (representing families) • Because of the size of the Province, local doctors are Peter J. Pliszka Toronto (represents police) used as part-time coroners.

1 Bhatt Murphy Solicitors, Liberty, INQUEST, Response To Consultation Paper On Attorney General’s Review Of The Role And Practices Of The CPS In Cases Of Deaths in Custody,p.12.

74 • There are approximately 350 coroners spread across is still in the hands of the police and they have to the Province (30,000 deaths a year). contain the scene. But in Ontario this hasn’t been a • There are about 100 inquests a year – if this major problem. investigation reveals criminality the police take over, • A death in custody is an SIU scene.The SIU and they lay charges. interviews the witnesses (police are not allowed to • Most inquests run for 3-4 days, the most complex speak to witnesses until SIU has spoken to them). ones run for 2 or 3 months. Police may have a parallel investigation but that is for their own purposes.The SIU investigates and decides • Custody deaths lead to mandatory inquests. whether to charge. • Coroners examine the circumstances and make a • If there are still issues that need to be resolved decision whether there should be an autopsy (by a (suicide watch, video tapes not working etc), the case pathologist: local hospital pathologist for will come back to the office of the Chief Coroner straightforward case, forensic pathologist for and an inquest will address issues of public safety or controversial case). prevention that will obviously not fall under the • Police who have jurisdiction in the area where the criminal code. death occurred will supply to the coroner as many • There are levels of monitoring of coroners: (1) the investigators as are needed. provinces are divided into different regions and each • There is a Crown Attorney as the coroner’s Counsel region has a full-time supervising regional coroner, a at every inquest. member of the chief coroners office; all the reports • Every inquest has a jury consisting of five members. and investigations that the coroner does are sent to • The number of autopsies performed is very low: Out the regional coroner. (2) the office of the Deputy of the 30,000 deaths that the Ontario office Chief Coroner monitors the regional coroners.All investigates, they do 8,000 autopsies – the main requests from police, insurance companies, lawyers, reason for that is because their coroners are etc come to him and by forwarding documents, he physicians and a lot of natural deaths can be has a chance to review those files.The supervising determined by the coroner without autopsy; regional coroner and the deputy chief coroner are on however, every death in custody has an autopsy. call 24h 7 days a week. Furthermore, every case that • If someone is in police custody and dies, that is a coroner thinks should be autopsied will be sent in reported to the Chief Coroner’s Office; it is also to the Chief Coroner’s Office in Toronto, where a reported to the independent Special Investigations round of specialists meets and looks at the case, Unit (SIU) – headed by a lawyer and independent of discussing whether it needs an autopsy (this round the police, although many of its investigators are ex- meets every morning). police officers.The SIU is a provincial investigative • The autopsy by the Chief Coroner’s Office (within agency which investigates any serious injury or death their building in Toronto) is perceived as thorough in police custody. and independent of both police and SIU. • The SIU examines whether they are to lay criminal • The family is not present at the autopsy but the charges or not.When the director decides that no police are. charges will be laid (e.g. because it was self-defence) • If there is an inquest, coroners will carry out an it comes to the Chief Coroner’s Office, an inquest investigation.When that is done, the date of the will take place and the coroner will use his own inquest is announced.At least a month before the investigators or will go to another police department. inquest, there will be a meeting with all the parties • If the custody death occurs is in prison, Ontario that will have standing and they will be given full brings the police in. disclosure of all the material. (Where there is no • One of the downsides of having an SIU: you cannot inquest: when investigation is completed, the family have an SIU in every city, so they have a small can request disclosure in writing. Chief Coroner’s number of investigators in comparison to the police Office will provide them with coroner’s report, with service, so they will never be there with the first autopsy report, with toxicology report. Family do not ambulance, or the first police car.The ‘golden hour’ get the police report, because that is not the property

75 of the coroner (but families can apply to the police 3. Joint research trip (INQUEST and Liberty) to for that report). Australia – death in custody project • Whatever is going to be brought up at the inquest, 01.07.2002-14.07.2002 the full brief is disclosed to all parties. It is disclosed with an undertaking that it cannot be used for any 3.1 Contacts other purposes until the inquest is completed. • The jury makes all the decisions: who, when, where Prof. Chris Cunneen Director of the Institute of Criminology, and how. University Sydney Law School • The jury can make recommendations. Office of the Brett Collins Spokesperson, Justice Action, Sydney Chief Coroner sends those recommendations to all the parties involved/ relevant to the case and an Brendan Thomas Executive Officer,Aboriginal Justice answer is expected from them. One year after the Advisory Council, Sydney inquest those responses will be published. Gayle Kennep Researcher,Aboriginal Justice Advisory • The recommendations are not legally binding but Council, Sydney they are processed centrally. David Mcdonald National Centre for Epidomiology and • Not every inquest is published in full.There is an Population Health, formerly director of annual journal that reviews inquests that have taken the Australian Institute of Criminology place, listing the verdict and the recommendations. responsible for deaths in custody,Canberra • For the province of Ontario there will be an Jenny Mouzos Research Analyst Manager,Australian electronic record. Institute of Criminology, Canberra Lisa Collins Policy,Australian Institute of 2.3 Conclusions/ implications for the project Criminology, Canberra

• The large number of autopsies in England and Wales Paul Williams Director,Australian Institute of may be explained by the fact that the coroner is a Criminology, Canberra lawyer and needs support by a doctor to determine Jacky Miledge Senior Deputy State Coroner for New the cause of death (whereas in Canada coroners are South Wales physicians trained to do this medical investigation). Peter Mathews Executive Officer, Coroners Court • Ontario has the Special Investigations Unit (similar Sydney to IPCC) that investigates police-related deaths and John White Coroners Court Sydney serious injuries.This guarantees independence. Joe Hedger Policy Officer, Human Rights and Equal • The role of the coroner in Ontario is seen as being Opportunities Commission, Sydney the guardian of public safety and prevention. Darren Dick Director Social Justice Unit, Human • Greater confidence is achieved due to full disclosure Rights and Equal Opportunities before an inquest into a death in custody to family Commission, Sydney and all parties who have standing. David Brown Coroner Melbourne • Inquests, and their juries, are more powerful in Ontario.The jury is not led by the coroner when Graeme Johnstone State Coroner Victoria giving the verdict, and can make recommendations Jaccinta Heffrey President of Coroners Society Australia, which will be followed up and monitored. Melbourne • The coronial system uses the press to pressurise for Dr David Ranson Deputy Director,Victorian Institute of change. Forensic Medicine

76 3.2 Information • Recommendations (NSW): detailed, documents can be viewed by anyone, recommendations are tabled in The trip was successful in putting the current research parliament and this way exerts pressure to comply on into a broader perspective, allowing for international ruling party, publicised by Attorney General’s Office. comparison and demonstrating some very useful practice. • Suicides: chamber findings, inquest not held; but Australia is a federal system and the Commonwealth Act thereafter hearing becomes a public document, does not cover inquest procedures. Each federal state has its family can request an inquest to be held (can be own laws and practice. However, from the States visited carried out by non-state coroner: i.e. any magistrate (New South Wales and Victoria) the following can be or clerk of the court – they are all qualified to be concluded: coroners). • There is a transparent, open and centralised system (centralised within the individual state not the federal 3.3 Conclusions, impact for the project: state). Australian coroners’ system guarantees: • There seems to be more public confidence. • Following the Royal Commission into Aboriginal • Transparency Deaths in Custody, State Coroners and Deputy State Coroners have been set up: with sole responsibility - all documents are disclosed to family before the for deaths in custody; more training; more powers. inquest and inquest is published • Investigation: there is more independence even • effectiveness though no separate body to police exists; in two - centralised states, a unit overseeing police has been established: - Monash project: electronic database ethical standards department (Victoria) and police integrity unit (NSW). Investigation takes place on • prevention of future deaths in custody behalf of coroner, s/he is seen as investigator, on call - coroner’s recommendations are powerful 24h to visit scene. • consistency Victoria: homicide squad visit scene; Melbourne: - latest project by Monash University (Victoria) sets coronial services, police and pathologist within one building, including research element (Monash up central database where all inquests including University); upon completion family is sent copy of recommendations will be published electronically everything on investigation before the inquest. for coroners from all States • Inquest: there is only one post-mortem; body • Independence returned to family; coroners cover reasonable cost for - the coroner is in charge of the investigation and burial of withheld body parts.All relevant organs and not the police blood will be sent off for analysis. Police and family • Promptness can be present at post-mortem, observe through glass window in seated viewing room and may ask - witnesses can be compelled, only one post- questions through microphone linked with mortem, no jury pathologist. • Public scrutiny • Coroners’ main aim is prevention: every inquest is - publication of all inquest documents, including published, including recommendations. recommendations • Rule 19 of Coroners Act (Victoria): if police charge • High standard someone there is no inquest, or power to refer case to DPP during/ after inquest. - since Royal Commission recommended setting • Extensive powers of coroner: can compel witnesses, up State Coroner and Deputy State Coroner, this detention if witness fails to turn up, only coroner can has been implemented with specialist training and give bail if witness held. funding.

77 4. Terms of Reference of the Advisory Committee • when suspects are being interviewed by the police but have not been detained To advise and assist The Civil Liberties Trust in respect • when persons are actively attempting to evade arrest of the project to consider and investigate methods of • when persons are stopped and searched or investigation post a death in custody.Whilst the project will questioned by police concentrate on the process following a death in police • when persons are in police vehicles (other than custody it will also consider the issues arising from deaths whilst in detention) in prison and other institutions where people are compulsorily detained. Furthermore, and subject to • when there is a siege situation or ambush resources, the project will also look at the extent to which • when persons are in care of police having been the issues that arise from such deaths are relevant to other detained under the Mental Health Act deaths for which police officers may be responsible. • when children or young persons are in police protection under the Children’s Act 1989. The project will culminate in a report, which will be published by The Civil Liberties Trust.The authorship and The Home Office is proposing to define four categories of findings of the report will be those of The Civil Liberties deaths: Trust. • Fatal road traffic accidents involving police officers The role of the Advisory Committee is to advise and • Fatal shooting incidents involving police officers assist the project. The Committee will meet on a 6-8 • Deaths in police custody weekly basis until summer 2002 and consider papers prepared by the researcher, which outline the general • Deaths following other types of contact with the concerns, problems identified and possible solutions police. proposed. It is hoped that a broad spectrum of opinion will be brought in and discussed. This research looks at the system for investigating all controversial deaths involving police contact that require (For a list of members of the Advisory Committee, please see the investigation.This includes all the above categories. Acknowledgements at the front of this report) 6. Index of common abbreviations 5. Definition of deaths in police custody ACPO Association of Chief Police Officers Deaths in police custody include situations where the CPS Crown Prosecution Service deceased was in police detention as defined by section DPP Director of Public Prosecutions 118(2) of the Police and Criminal Evidence Act 1984, i.e. IPCC Independent Police Complaints Commission where the deceased was arrested or detained in charge of a PACE Police & Criminal Evidence Act 1984 constable, and where the deceased was otherwise in the SIU Special Investigations Unit (Ontario) hands of the police.This, inter alia, covers deaths: UFFC United Friends & Families Campaign

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